Exhibit
10.1


 


 


AMENDED
AND RESTATED OFFICE LEASE


 


BETWEEN


 


TRANSWESTERN FEDERAL, L.L.C., AS LANDLORD


 


AND


 


ENERNOC, INC., AS TENANT


 


75 – 101 FEDERAL STREET


 


BOSTON, MASSACHUSETTS


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  1.

  	
  DEFINITIONS

  	
  1

  
	
   

  	
   

  	
   

  
	
  2.

  	
  LEASE GRANT/POSSESSION

  	
  6

  
	
   

  	
   

  	
   

  
	
  3.

  	
  USE

  	
  6

  
	
   

  	
   

  	
   

  
	
  4.

  	
  RENT

  	
  7

  
	
   

  	
   

  	
   

  
	
  5.

  	
  SECURITY DEPOSIT

  	
  8

  
	
   

  	
   

  	
   

  
	
  6.

  	
  SERVICES TO BE FURNISHED BY
  LANDLORD

  	
  9

  
	
   

  	
   

  	
   

  
	
  7.

  	
  LEASEHOLD IMPROVEMENTS; TENANT’S
  PROPERTY

  	
  11

  
	
   

  	
   

  	
   

  
	
  8.

  	
  SIGNAGE

  	
  11

  
	
   

  	
   

  	
   

  
	
  9.

  	
  MAINTENANCE, REPAIRS AND
  ALTERATIONS

  	
  12

  
	
   

  	
   

  	
   

  
	
  10.

  	
  USE OF ELECTRICAL SERVICES BY
  TENANT

  	
  13

  
	
   

  	
   

  	
   

  
	
  11.

  	
  ASSIGNMENT AND SUBLETTING

  	
  14

  
	
   

  	
   

  	
   

  
	
  12.

  	
  MECHANIC’S LIENS

  	
  16

  
	
   

  	
   

  	
   

  
	
  13.

  	
  INSURANCE

  	
  16

  
	
   

  	
   

  	
   

  
	
  14.

  	
  INDEMNITY

  	
  17

  
	
   

  	
   

  	
   

  
	
  15.

  	
  DAMAGES FROM CERTAIN CAUSES

  	
  18

  
	
   

  	
   

  	
   

  
	
  16.

  	
  CASUALTY DAMAGE

  	
  18

  
	
   

  	
   

  	
   

  
	
  17.

  	
  CONDEMNATION

  	
  19

  
	
   

  	
   

  	
   

  
	
  18.

  	
  EVENTS OF DEFAULT

  	
  20

  
	
   

  	
   

  	
   

  
	
  19.

  	
  REMEDIES

  	
  20

  
	
   

  	
   

  	
   

  
	
  20.

  	
  LANDLORD’S DEFAULT

  	
  23

  
	
   

  	
   

  	
   

  
	
  21.

  	
  NO WAIVER

  	
  23

  
	
   

  	
   

  	
   

  
	
  22.

  	
  PEACEFUL ENJOYMENT

  	
  24

  
	
   

  	
   

  	
   

  
	
  23.

  	
  INTENTIONALLY DELETED

  	
  24

  



 

















 


	
   

  	
   

  	
  PAGE

  
	
   

  	
   

  	
   

  
	
  24.

  	
  HOLDING OVER

  	
  24

  
	
   

  	
   

  	
   

  
	
  25.

  	
  SUBORDINATION TO MORTGAGE;
  ESTOPPEL CERTIFICATE

  	
  24

  
	
   

  	
   

  	
   

  
	
  26.

  	
  NOTICE

  	
  25

  
	
   

  	
   

  	
   

  
	
  27.

  	
  SURRENDER OF PREMISES

  	
  26

  
	
   

  	
   

  	
   

  
	
  28.

  	
  RIGHTS RESERVED TO LANDLORD

  	
  26

  
	
   

  	
   

  	
   

  
	
  29.

  	
  MISCELLANEOUS

  	
  26

  
	
   

  	
   

  	
   

  
	
  30.

  	
  NO OFFER

  	
  28

  
	
   

  	
   

  	
   

  
	
  31.

  	
  ENTIRE AGREEMENT

  	
  28

  
	
   

  	
   

  	
   

  
	
  32.

  	
  LIMITATION OF LIABILITY

  	
  28

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A-OUTLINE AND LOCATION OF PREMISES

  	
   

  
	
  EXHIBIT B-RULES AND REGULATIONS

  	
   

  
	
  EXHIBIT C-PAYMENT OF BASIC COSTS

  	
   

  
	
  EXHIBIT D-WORK LETTER

  	
   

  
	
  EXHIBIT E-ADDITIONAL PROVISIONS

  	
   

  
	
  EXHIBIT F-COMMENCEMENT LETTER

  	
   

  
	
  EXHIBIT G-JANATORIAL AND CLEANING SPECIFICATIONS

  	
   

  
	
  EXHIBIT H-GENERATOR SPACE

  	
   

  
	
  EXHIBIT I-FORM OF SNDA

  	
   

  
	
  EXHIBIT J-FORM OF
  GUARANTY

  	
   

  



 


ii

















 


AMENDED AND RESTATED OFFICE
LEASE


 


This Amended and
Restated Office Lease (the “Lease”) is made
and entered into on this the 15th day of August, 2008, between TRANSWESTERN FEDERAL, L.L.C., a Delaware limited liability
company (“Landlord”), and ENERNOC,
INC., a Delaware corporation (“Tenant”).


 


R  E  C
I  T  A  L  S:


 


A.            Landlord and Tenant entered into that
certain Office Lease dated December 10, 2007 (the “Original
Lease”) for certain premises (the “Original
Premises”) on the third floor of the building located at 101 Federal
Street, Boston, Massachusetts (the “101 Federal Street
Building”) and depicted on Exhibit A-1 attached hereto.


 


B.            The Original Premises currently consists
of approximately 15,425 square feet of rentable area.


 


C.            Tenant desires to lease the following
additional portions of the 101 Federal Street Building and the building located
at 75 Federal Street, Boston, Massachusetts (the “75 Federal
Street Building,” and together with the 101 Federal Street Building,
the “Building”):  (i) approximately 19,644 square feet of
rentable area located on the 11th floor of the 101 Federal Street Building and
depicted on Exhibit A-2 attached hereto
(the “First Additional Space”), and (ii) approximately
21,965 square feet of rentable area located on the 2nd and 3rd floors of the 75
Federal Street Building (consisting of 4,335 square feet of rentable area on
the 2nd floor of the 75 Federal Street Building and 17,630 square feet of
rentable area on the 3rd floor of the 75 Federal Street Building) and
depicted on Exhibit A-3 attached hereto,
together with that certain internal staircase (the “Internal
Staircase”) currently located in and connecting the aforesaid
portions of the 2nd and 3rd floors of the 75 Federal Street Building
(collectively, the “Second Additional Space”),
which space is currently subleased to Tenant from Amdocs, Inc. (“Amdocs”) pursuant to that certain Sublease Agreement dated
as October 3, 2005 between Amdocs and Tenant, as amended by that certain
First Amendment to Sublease Agreement dated as of November 3, 2006
(together, the “Sublease”).


 


D.            Landlord and Tenant desire to amend and
restate the Original Lease on the terms and conditions hereinafter set forth.


 


NOW,
THEREFORE, in
consideration of the mutual covenants contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows:


 


1.     Definitions.  The
following are definitions of some of the defined terms used in this Lease.  The definition of other defined terms are
found throughout this Lease.


 


A.            “Additional Rent” shall mean Tenant’s Pro Rata Share of Basic
Costs (hereinafter defined) and Tenant’s Pro Rata Share of Taxes (hereinafter
defined) and any other sums (exclusive of Base Rent) that are required to be
paid to Landlord by Tenant hereunder, which sums are deemed to be Additional
Rent under this Lease.


 

















 


B.            Base Rent”: Base Rent shall
be paid according to the following schedule, subject to the provisions of Section 4
hereof:


 


	
  PERIOD

  	
   

  	
  ANNUAL BASE RENT

  	
   

  	
  MONTHLY

  INSTALLMENTS

  OF BASE RENT

  	
   

  
	
  Commencement Date – First Additional Space Rent
  Commencement Date (hereinafter defined)

  	
   

  	
  $

  	
  694,125.00

  	
   

  	
  $

  	
  57,843.75

  	
   

  
	
  First Additional Space Rent Commencement Date –
  Second Additional Space Commencement Date (hereinafter defined)

  	
   

  	
  $

  	
  1,606,187.00

  	
  *

  	
  $

  	
  133,848.91

  	
  *

  
	
  Second Additional Space Commencement Date –
  June 30, 2010

  	
   

  	
  $

  	
  2,550,682.00

  	
  **

  	
  $

  	
  212,556.83

  	
  **

  
	
  July 1, 2010 – June 30, 2011

  	
   

  	
  $

  	
  2,607,716.00

  	
   

  	
  $

  	
  217,309.67

  	
   

  
	
  July 1, 2011 – June 30, 2012

  	
   

  	
  $

  	
  2,664,750.00

  	
   

  	
  $

  	
  222,062.50

  	
   

  
	
  July 1, 2012 – June 30, 2013

  	
   

  	
  $

  	
  2,721,784.00

  	
   

  	
  $

  	
  226,815.33

  	
   

  
	
  July 1, 2013 – June 30, 2014

  	
   

  	
  $

  	
  2,778,818.00

  	
   

  	
  $

  	
  231,568.17

  	
   

  



 






*Notwithstanding the foregoing, so long as Tenant is
not then in default under this Lease beyond any applicable notice and cure
periods and Landlord has not terminated this Lease as a result of such default,
Tenant shall receive the following abatement of Base Rent:  (i) an abatement of Base Rent due
hereunder with respect to the Original Premises and the First Additional Space
for the first calendar month following the First Additional Space Rent
Commencement Date (hereinafter defined); and (ii) thereafter, and lasting
until one year after the First Additional Space Rent Commencement Date, an
abatement of Base Rent due hereunder with respect to a portion of the First
Additional Space equal to 4,644 square feet.


 


**Notwithstanding the foregoing, so long as Tenant is
not then in default under this Lease beyond any applicable notice and cure
periods and Landlord has not terminated this Lease as a result of such default,
Tenant shall receive an abatement of monthly Base Rent due hereunder with
respect to the Second Additional Space for the first calendar month following
the Second Additional Space Commencement Date.


 


2

















 


C.            “Base Year” shall mean calendar year 2009 with respect to
Basic Costs (as defined on Exhibit C
attached hereto) and the Tax Fiscal Year 2010 with respect to Taxes (as defined
on Exhibit C attached hereto).


 


D.            “Basic Costs” is defined in Exhibit C
attached hereto.


 


E.             “Broker” shall mean, collectively, Richards Barry Joyce &
Partners and Cushman & Wakefield, Inc.


 


F.             “Business Day(s)” shall mean Mondays through Fridays
exclusive of the following holidays:  New
Year’s Day, Martin Luther King Day, President’s Day, Patriots’ Day, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving
Day, Christmas Day, and such other holidays as Landlord may from time to time
designate in a manner consistent with the operation of a first class office
building located in the downtown Boston, Massachusetts area.


 


G.            “Common Areas” shall mean those areas located within the Building
or on the Property for the common use or benefit of tenants generally and/or
the public substantially as existing as of the date hereof.


 


H.            “Default Rate” shall mean the lower of (i) twelve (12)
percent per annum, or (ii) the highest rate of interest from time-to-time
permitted under applicable federal and state law.


 


I.              “First Additional Space Rent Commencement Date” shall mean
the earlier of (i) December 1, 2008, and (ii) the date on which
Tenant occupies the First Additional Space for the conduct of its business.


 


J.             “Lease Term” shall mean a period commencing on the execution
of the Original Lease (the “Commencement Date”)
and, unless sooner terminated as provided herein, ending on June 30, 2014
(the “Expiration Date”).


 


K.            “Normal Business Hours” for the Building shall mean 8:00 a.m.
to 6:00 p.m. Mondays through Fridays, and 8:00 a.m. to 1:00 p.m.
on Saturdays, exclusive of holidays.


 


L.             “Notice Addresses” shall mean the following addresses for
Tenant and Landlord, respectively:


 


Tenant:


 


EnerNOC, Inc.


75 Federal Street, #300


Boston, MA  02110


Attn:  General Counsel


 


3

















 


with a copy to:


 


EnerNOC, Inc.


75 Federal Street, #300


Boston, MA 
02110


Attn:  CFO


 


Landlord:


 


Transwestern Federal, L.L.C.


c/o Lincoln Property Company


75 Federal Street


Boston, MA 
02110


Attn:  General Manager


 


with a copy to:


 


Transwestern Investment Company


150 North Wacker Drive, Suite 800


Chicago, IL 
60606


Attn:  Owner’s Representative


 


and to:


 


Drane, Freyer and Lapins


150 North Wacker Drive


8th Floor


Chicago, IL 
60606


Attn:  Wendy Freyer, Esq.


 


Payments of Rent only shall be made payable to the
order of:


 


Transwestern Federal, L.L.C.


 


at the following address:


 


c/o Lincoln Property Company


P.O. Box 842546


Boston, MA 
02284-2546


 


or such other name and address as Landlord shall,
from time to time, designate.


 


M.           “Permitted Use” shall mean (i) general and executive
offices; (ii) as accessory and ancillary uses to general and executive
offices, but only to the extent permitted by applicable laws (including,
without limitation, the City of Boston zoning 


 


4

















 


ordinance) and consistent with uses in multi-tenant first class office
buildings located in the financial district of the City of Boston,
Massachusetts, network operations center, research and development, programming
and all purposes related to the business of Tenant as a developer and provider
of energy solutions and products; and (iii) for no other use or purpose.


 


N.            “Premises” shall mean (i) commencing on the Commencement
Date, the Original Premises; (ii) commencing on the execution of this
Lease (the “First Additional Space Commencement Date”),
the Original Premises and the First Additional Space; and (iii) commencing
on July 1, 2009 (the “Second Additional Space
Commencement Date”), the Original Premises, the First Additional
Space and the Second Additional Space. 
Notwithstanding anything in this Lease to the contrary, Landlord’s
failure to deliver to Tenant possession of any portion of the Second Additional
Space for reasons outside Landlord’s reasonable control, including, without
limitation, the holding over in possession of such portions of the Premises by
the current occupant(s) thereof, shall not affect the enforceability of
this Lease, or subject Landlord to any liability to Tenant for damage or be
deemed a default by Landlord of its obligations under this Lease.  If at any time during the Lease Term the
Premises include one or more floors in their entirety, all corridors and
restroom facilities located on such full floor(s) shall be considered part
of the Premises.  Tenant hereby
acknowledges that as of the date hereof, Tenant is in possession of (a) the
Original Premises as the tenant under the Original Lease, and (b) the
Second Additional Space as a subtenant under the Sublease.


 


O.            “Property” shall mean the Building and the parcel of land on
which it is located and other improvements serving the Building, if any, and
the parcel of land on which they are located.


 


P.             “Rentable Area in the Building” shall mean (i) with
respect to the 75 Federal Street Building, 251,653 square feet, and (ii) with
respect to the 101 Federal Street Building, 561,542 square feet.


 


Q.            “Rentable Area in the Premises” shall mean (i) commencing
on the Commencement Date, 15,425 square feet, (ii) commencing on the First
Additional Space Commencement Date, 35,069 square feet, and (iii) commencing
on the Second Additional Space Commencement Date, 57,034 square feet.


 


R.            “Tax Fiscal Year” shall mean the 12-month fiscal year for the
City of Boston, Massachusetts, which currently commences on July 1 of each
calendar year and ends on June 30 of each subsequent calendar year.


 


S.             “Taxes” is defined in Exhibit C
attached hereto.


 


T.            “Tenant’s Pro Rata Share” shall mean (i) commencing on
the Commencement Date, two and 75/100 percent (2.75%) of the 101 Federal Street
Building, (ii) commencing on the First Additional Space Rent Commencement
Date, six and 25/100 percent (6.25%) of the 101 Federal Street Building, and (iii) commencing
on the Second 


 


5

















 


Additional Space Commencement Date, six and 25/100 percent (6.25%) of the
101 Federal Street Building and eight and 73/100 percent (8.73%) of the 75
Federal Street Building.


 


2.     Lease Grant/Possession.


 


A.            Subject to
and upon the terms herein set forth, Landlord leases to Tenant and Tenant
leases from Landlord the Premises on an “as is” basis (except as otherwise
expressly set forth herein), together with the right, in common with others, to
use the Common Areas.  By taking
possession of the Premises, Tenant is deemed to have accepted the Premises and
agreed that the Premises is in good order and satisfactory condition, with no
representation or warranty by Landlord as to the condition of the Premises or
the Building or suitability thereof for Tenant’s use; provided, however, that
the foregoing shall not relieve Landlord of its repair obligations under Section 9C
of this Lease or its obligations under Paragraph 1 of Exhibit D.


 


B.            Notwithstanding
anything to the contrary contained in this Lease, if Landlord is unable to
tender possession of any portion of the Premises on the date possession is to
be delivered due to the holding over of another party, this Lease shall not be
void or voidable or otherwise affected and Tenant shall have no claim for
damages against Landlord.  Landlord shall
use reasonable efforts to regain possession of such portion of the Premises in
order to deliver the same to Tenant.  If
Landlord is unable to tender possession of the Second Additional Space on the
Second Additional Space Commencement Date, such date shall be postponed until
the date Landlord delivers possession of the Second Additional Space to Tenant,
the Expiration Date shall, at the option of Landlord, correspondingly be
postponed on a per diem basis, and, upon the determination of the actual Second
Additional Space Commencement Date, Landlord and Tenant shall each execute and
deliver a Commencement Letter in the form of Exhibit F
attached hereto.


 


C.            If Tenant,
with Landlord’s prior written approval, which approval shall not be
unreasonably withheld, conditioned or delayed, takes possession of the Second
Additional Space prior to the Second Additional Space Commencement Date for the
sole purpose of performing any improvements therein or installing furniture,
equipment or other personal property of Tenant, such possession shall be
subject to all of the terms and conditions of this Lease, except that Tenant
shall not be required to pay Rent with respect to such portion of the Premises
for such period of time prior to the Second Additional Space Commencement
Date.  Tenant shall, however, be liable
for the reasonable cost of any services (e.g., electricity, HVAC, freight
elevators) that are provided to Tenant during the period of Tenant’s possession
prior to the Second Additional Space Commencement Date.  Nothing herein shall be construed as granting
Tenant the right to take possession of the Second Additional Space prior to the
Second Additional Space Commencement Date, whether for construction, fixturing
or any other purpose, without the prior written consent of Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed.


 


3.     Use.  The Premises shall be used for the Permitted
Use and for no other purpose.  Tenant
agrees not to use or permit the use of the Premises for any purpose which is
illegal or 


 


6

















 


dangerous, which creates a nuisance or which would increase the cost of
insurance coverage with respect to the Building. Tenant will conduct its
business and control its agents, servants, employees, customers, licensees, and
invitees in such a manner as not to unreasonably interfere with or unreasonably
disturb other tenants or Landlord in the management of the Property.  Tenant will maintain the Premises in a clean
and sanitary condition, and comply with all laws, ordinances, orders, rules and
regulations of any governmental entity with reference to (i) Tenant’s
particular use of the Premises or (ii) any Alterations undertaken by or on
behalf of Tenant or anyone claiming by, through, or under Tenant (but in no
event shall the need for compliance be deemed to result from Alterations
undertaken by or on behalf of Tenant if non-compliance is merely discovered as
a result of such Alterations as opposed to being caused by the Alterations
undertaken by Tenant); provided, however, that in no event shall Tenant be
responsible for bringing the Premises into compliance with applicable laws,
ordinances, orders, rules and regulations of any governmental entity in
effect as of the Commencement Date to the extent applicable to the use,
condition, configuration or occupancy of the Premises for general and executive
offices, generally, as opposed to Tenant’s particular use.  Tenant shall not, and shall not allow its
employees, agents, contractors or invitees, to bring into the Building or the
Premises any dangerous or hazardous materials, except for customary office and
cleaning supplies, provided Tenant uses, stores and disposes of the same in
compliance with all applicable law. 
Tenant, at its expense, will comply with the rules and regulations
of the Building attached hereto as Exhibit B
and such other rules and regulations adopted and altered by Landlord from
time-to-time and will cause all of its agents, employees, invitees and visitors
to do so.  All such changes to rules and
regulations will be reasonable and shall be sent by Landlord to Tenant in
writing.  In the event of a conflict
between the rules and regulations and the terms of this Lease, the terms
of this Lease shall control.  Landlord
shall not knowingly enforce the rules and regulations against Tenant in a
discriminatory manner.


 


4.     Rent.


 


A.            Tenant
covenants to pay to Landlord during the Lease Term, without any setoff or
deduction except as otherwise expressly provided herein, the full amount of all
Base Rent and Additional Rent due hereunder and the full amount of all such
other sums of money as shall become due under this Lease, all of which
hereinafter may be collectively called “Rent.”  In addition, Tenant shall pay, as Additional
Rent, all rent, sales and use taxes or other similar taxes, if any, levied or
imposed by any city, state, county or other governmental body having authority,
such payments to be in addition to all other payments required to be paid to
Landlord by Tenant under this Lease. 
Such payments shall be paid concurrently with the payments of the Rent
on which the tax is based. Base Rent and Additional Rent for each calendar year
or portion thereof during the Lease Term, shall be due and payable in advance
in monthly installments on the first day of each calendar month during the
Lease Term, without demand.  If the Lease
Term commences on a day other than the first day of a month or terminates on a
day other than the last day of a month, then the installments of Base Rent and
Additional Rent for such month or months shall be prorated, based on the number
of days in such month.  All amounts
received by Landlord from Tenant hereunder shall be applied first to the
earliest accrued and unpaid Rent then outstanding.  Tenant’s covenant to pay Rent shall be
independent of every other covenant set forth in this Lease.


 


7

















 


B.            To the
extent allowed by law, all installments of Rent not paid when due shall bear
interest at the Default Rate from the date due until paid, provided, Tenant
shall be entitled to a grace period of three (3) Business Days after
written notice from Landlord with respect to the first two (2) late
payments in any consecutive twelve (12) month period.  In addition, if Tenant fails to pay any
installment of Base Rent and Additional Rent or any other item of Rent when due
and payable hereunder, a “Late Charge” equal
to five percent (5%) of such unpaid amount will be due and payable immediately
by Tenant to Landlord, provided, Tenant shall be entitled to a grace period of
three (3) Business Days after notice from Landlord with respect to the
first two (2) late payments in any consecutive twelve (12) month period.


 


C.            The
Additional Rent payable hereunder shall be adjusted from time-to-time in
accordance with the provisions of Exhibit C
attached hereto.


 


D.            Tenant’s
obligation so to pay Rent under the Lease shall be absolute, unconditional, and
independent and shall not be discharged or otherwise affected by any law or
regulation now or hereafter applicable to the Premises, or any other
restriction on Tenant’s use, or, except as expressly provided in the Lease, any
casualty or taking, or any failure by Landlord to perform or other occurrence;
and Tenant waives all rights now or hereafter existing to terminate, quit or
surrender this Lease or the Premises or any part thereof, or to assert any
defense in the nature of constructive eviction to any action seeking to recover
Rent.


 


5.     Security
Deposit.  Tenant shall
deliver to Landlord, simultaneously with the execution of this Lease, an
unconditional and irrevocable letter of credit (“Letter of
Credit”) in the amount of $850,227 and in a form reasonably
satisfactory to Landlord.  The Letter of
Credit shall be issued by a bank reasonably satisfactory to Landlord.  Tenant shall ensure that at all times after
the execution and delivery of this Lease until sixty (60) days after the
Expiration Date, as the same may be extended, an unexpired Letter of Credit in
the amount of $850,227 or cash in the amount of $850,227 shall be in the
possession of Landlord; provided, however, that so long as no Event of Default
by Tenant has occurred under this Lease and no default by Tenant of which
Tenant has received notice then remains uncured, Tenant may elect to reduce the
amount of such Letter of Credit or cash to $637,670 after June 30, 2011
(the “Adjustment Date”).  In the event that Tenant elects to reduce the
amount of such Letter of Credit pursuant to the preceding sentence, Tenant
shall, no earlier than the Adjustment Date, deliver to Landlord either (i) a
substitute Letter of Credit in the amount of $637,670, whereupon Landlord shall
immediately return the original Letter of Credit to Tenant, or (ii) an
amendment to the Letter of Credit reducing the amount to $637,670.  If, at the time Tenant makes such election,
Landlord is holding cash in lieu of a Letter of Credit as a Security Deposit
(hereinafter defined), then Landlord shall apply any cash in excess of $637,670
to the next installment of Rent coming due under this Lease.  The Letter of Credit shall contain a
so-called “evergreen” clause providing that the Letter of Credit shall not be
canceled unless the issuing bank delivers at least sixty (60) days’ prior
written notice to Landlord.  Tenant shall
deliver to Landlord, no later than thirty (30) days prior to the expiry
date of the then outstanding and expiring Letter of Credit a replacement
Letter of Credit.  Landlord shall be
entitled to draw on the Letter of Credit (i) if Tenant fails to deliver
any replacement Letter of Credit as required, in which event Landlord shall be
permitted to retain the entire proceeds of such Letter of Credit for 


 


8

















 


application as a security deposit (“Security Deposit”)
hereunder, (ii) to cure or attempt to cure, in whole or in part, any Event
of Default by Tenant under this Lease, in which event Tenant shall replenish
the amount so drawn upon written demand by Landlord, and (iii) if the
credit rating of the long-term debt of the issuer of the Letter of Credit
(according to Moody’s or similar national rating agency) is downgraded to a
grade below investment rate), or if the issuer of the Letter of Credit shall
enter into any supervisory agreement with any governmental authority, or if the
issuer of the Letter of Credit shall fail to meet any capital requirements
imposed by applicable law, unless Tenant delivers to Landlord a replacement
Letter of Credit complying with the terms of this Lease within ten (10) days
after written demand therefor from Landlord. 
Failure by the issuer to honor a draw request on the Letter of Credit
shall be a default under the terms of this Lease entitling Landlord to exercise
its remedies hereunder.  Each Letter of
Credit shall be for the benefit of Landlord and its successors and assigns and
shall entitle Landlord or its successors or assigns to draw from time to time
under the Letter of Credit in portions or in whole upon presentation of a sight
draft and statement by Landlord that Landlord is entitled to draw thereunder
pursuant to the terms and provisions of this Lease.  Landlord shall have an unrestricted right to
transfer the Letter of Credit at anytime and to any party with an interest in
the Building.  Tenant shall pay any
transfer commission (fee) and all other costs (hereinafter collectively
referred to as the “Transfer Fee”)
which may be imposed by the bank issuing the Letter of Credit for such a
transfer of the Letter of Credit by Landlord. 
The Tenant’s failure to pay the Transfer Fee shall constitute a default
of this Lease, and Landlord shall have the right to pursue any and all remedies
provided Landlord under this Lease, in equity and at law.


 


Any cash held by Landlord following a draw on
the Letter of Credit pursuant to the immediately preceding paragraph, and not
otherwise applied towards the cure of a Tenant default, shall be held as a
Security Deposit until such time as (a) Tenant replaces the Letter of
Credit without liability for interest and as security for the performance by
Tenant of Tenant’s covenants and obligations under this Lease, it being
expressly understood that the Security Deposit shall not be considered an
advance payment of Rent or a measure of Tenant’s liability for damages in case
of default by Tenant, or (b) the expiration or earlier mutually agreed
upon termination of this Lease (as more particularly set forth
hereinbelow).  Landlord shall not be required
to keep the Security Deposit separate from its other accounts and shall have no
fiduciary responsibilities or trust obligations whatsoever with regard to the
Security Deposit.  Landlord may, from
time-to-time, without prejudice to any other remedy and without waiving such
default, use the Security Deposit to the extent necessary to cure or attempt to
cure, in whole or in part, any Event of Default of Tenant hereunder.  To the extent Tenant is not then required to
cure any continuing default hereunder, the balance of any Security Deposit then
held by Landlord shall be returned by Landlord to Tenant within sixty (60) days
after the expiration or earlier mutually agreed upon termination of this
Lease.  If Landlord transfers its
interest in the Premises during the Lease Term, Landlord shall assign the
Security Deposit then being held by Landlord to such successor to Landlord, if
any, and the Letter of Credit to the transferee and thereafter shall have no
further liability for the return of such Security Deposit and the Letter of
Credit.


 


6.     Services to be Furnished by Landlord.


 


A.            Landlord
shall furnish the following services, in each case subject to the provisions of
Section 9A:  (i) heating and
air conditioning during Normal Business Hours 


 


9

















 


to provide a temperature condition required, in Landlord’s reasonable
judgment, for comfortable occupancy of the Premises under normal business
operations; (ii) hot and cold water for use in the common lavatories of
the Building and cold water for any kitchenette(s) within the Premises
(any heating of such water for the kitchenette(s) being the responsibility
of Tenant); (iii) janitorial service in the Premises and Common Areas on
Business Days to the specifications set forth in Exhibit G
attached hereto; (iv) electricity to the Premises for general office use,
in accordance with and subject to the terms and conditions of Section 10
of this Lease and (v) passenger elevator service, 24 hours a day, 7 days a
week; and freight elevator service on Business Days, upon request of Tenant and
subject to scheduling and reasonable charges by Landlord; provided, however
that Landlord shall not charge Tenant for the use of the freight elevator
during Tenant’s performance of the Initial Alterations to the Premises.  Tenant shall be permitted access to the Building and
the Premises, and the ability to utilize the HVAC system and all utilities
serving the Premises (subject to any reasonable after-hours HVAC charges
Landlord may from time to time charge tenants in the Building), on a 24 hour
per day, 7 day per week basis, subject to Force Majeure (as hereinafter
defined) and Landlord’s reasonable security measures, and subject to Landlord’s
right to prohibit, restrict or limit access to the Building or the Premises in
emergency situations if Landlord determines, in its reasonable discretion, that
it is necessary or advisable to do so in order to prevent or protect against
death or injury to persons or damage to property.


 


B.            If Tenant
requests any other utilities or building services in addition to those
identified in Section 6A, or any of the above utilities or building
services in frequency, scope, quality or quantities substantially greater than
the standards set by Landlord for the Building, then Landlord shall use
commercially reasonable efforts to attempt to furnish Tenant with such
additional utilities or building services. 
Landlord may impose a reasonable charge for such additional utilities or
building services, which shall be paid monthly by Tenant as Additional Rent on
the same day that the monthly installment of Base Rent is due.


 


C.            Except as
otherwise expressly provided herein, the failure by Landlord to any extent to
furnish, or the interruption or termination of utilities and Building services
identified in Section 6A in whole or in part, resulting from adherence to
laws, regulations and administrative orders, wear, use, repairs, improvements,
alterations or any causes shall not render Landlord liable in any respect nor
be construed as an actual or 
constructive eviction of Tenant, nor give rise to an abatement of Rent,
nor relieve Tenant from the obligation to fulfill any covenant or agreement
hereof.


 


D.            Notwithstanding
anything to the contrary contained in this Lease, if: (i) Landlord ceases
to furnish any service in the Building or to perform any of its obligations
under this Lease for a period in excess of five (5) consecutive Business
Days after Tenant notifies Landlord of such cessation (the “Interruption Notice”); (ii) such cessation does not
arise as a result of an act or omission of Tenant; (iii) such cessation is
not caused by a fire or other casualty (in which case Section 16 shall
control); (iv) the restoration of such service or performance of such
obligations is reasonably within the control of Landlord; and (v) as a
result of such cessation or failure to perform, the Premises 


 


10

















 


or a material portion thereof, is rendered untenantable and Tenant in fact
ceases to use the Premises, or a material portion thereof, then Tenant, as its
sole remedy, shall be entitled to receive an abatement of Base Rent and Tenant’s
Pro Rata Share of Basic Costs and Taxes payable hereunder during the period
beginning on the sixth (6th) consecutive Business Day after Landlord’s receipt
of the Interruption Notice and ending on the day when the service in question
has been restored or obligation recommenced, as the case may be.  In the event the entire Premises has not been
rendered untenantable by the cessation in service or failure to perform such
obligation, the amount of abatement that Tenant is entitled to receive shall be
prorated based upon the percentage of the Premises so rendered untenantable and
not used by Tenant.


 


7.             Leasehold Improvements; Tenant’s
Property.  All fixtures (other than Tenant’s Property
(hereinafter defined)), improvements and appurtenances attached to, or built
into, the Premises at the commencement of or during the Lease Term, whether or
not by, or at the expense of, Tenant (collectively, the “Leasehold
Improvements”), shall be and remain a part of the Premises, shall be
the property of Landlord, and shall not be removed by Tenant except as
expressly provided herein. 
Notwithstanding the foregoing, all unattached and moveable partitions,
all trade fixtures, all equipment installed by Tenant (including, without
limitation, the Emergency Generator), all furniture located in the Premises and
acquired by or for the account of Tenant, and all personalty brought into the
Premises by Tenant (collectively, “Tenant’s Property”)
shall be owned and insured by Tenant. 
Tenant shall have no obligation to remove or restore any Leasehold
Improvements which were installed by or at the direction of Tenant or anyone
claiming by, through or under Tenant, including, without limitation, the Third
Floor Connector (hereinafter defined), nor shall Tenant have any obligation to
remove the Internal Staircase; provided, however, that upon the expiration of
the Lease Term or the sooner termination of Tenant’s right to possession of the
Premises, Tenant shall remove Tenant’s Property, all electronic, phone and data
cabling exclusively serving the Premises installed by or at the direction of
Tenant or anyone claiming by, through or under Tenant (whether such cabling is
located within or outside of the Premises), and all Leasehold Improvements
related to Tenant’s research and development activities (except that Tenant
shall have no affirmative obligation to remove the Emergency Generator unless
Tenant chooses to do so).  Tenant shall,
at its sole cost and expense,  repair any
damage caused by such removal.  If Tenant
fails to remove any of the foregoing items or to perform any required repairs
and restoration, Landlord, at Tenant’s sole cost and expense, may remove the
same (and repair any damage occasioned thereby) and dispose thereof or deliver
such items to any other place of business of Tenant, or warehouse the same, and
Tenant shall pay the cost of such removal, repair, delivery, or warehousing of
such items within five (5) days after demand from Landlord.  Provided that (i) there has been no
default under the lease between Amdocs and Landlord with respect to the Second
Additional Space (the “Amdocs Lease”),
and (ii) Tenant does not elect to terminate this Lease pursuant to Section 36
below, Landlord shall not require Amdocs to remove any Leasehold Improvements
located within the Second Additional Space (including, without limitation, the
Internal Staircase) at the termination of the Amdocs Lease and, if so requested
by Amdocs, Landlord shall enter into a written agreement with Amdocs to that
effect.


 


8.     Signage.  Tenant shall not install any signage visible
from the exterior of the Premises; all signage shall be in the standard
graphics for the Building and no others shall be used or permitted without
Landlord’s prior written consent. 
Landlord shall provide, at Landlord’s expense, 


 


11

















 


lobby directory signage identifying Tenant and building standard signage
at each entrance to each of the Original Premises, the First Additional Space
and the Second Additional Space, each identifying Tenant.


 


9.     Maintenance, Repairs and Alterations.


 


A.            Except to
the extent such obligations are imposed upon Landlord hereunder, Tenant shall,
at its sole cost and expense, maintain the Premises (including, without
limitation, any supplemental electrical or HVAC systems installed by or on
behalf of Tenant and exclusively serving the Premises, audio/visual, computer,
data or telecommunications systems, special security systems, interior
bathrooms (i.e., bathrooms located within the Premises and not available for
common use), kitchens and kitchen appliances) and any building systems
(including electrical or HVAC systems) to the extent exclusively serving
the Premises, whether located within or outside of the
Premises, in substantially the same order, condition and repair as existed
on the Commencement Date (or such better condition as it may be put in
thereafter by Tenant) throughout the entire Lease Term, ordinary wear and tear
and damage by fire or other casualty excepted. Tenant agrees to keep the areas
visible from outside the Premises in a neat, clean and attractive condition at
all times consistent with other similarly situated space.  Tenant shall, within thirty (30) days after
Landlord’s written demand therefor, reimburse Landlord for the reasonable cost
of all repairs, replacements and alterations (collectively, “Repairs”) in and to the Premises, Building and Property and
the facilities and systems thereof, plus an administration charge of ten
percent (10%) of such cost, the need for which Repairs arises out of (1) the
installation, removal, use or operation of Tenant’s Property, (2) the
moving of Tenant’s Property into or out of the Building, (3) any
Alterations (hereinafter defined), or (4) the misuse or negligence of
Tenant, its agents, contractors, employees or invitees, subject to Section 13D
below.


 


B.            Tenant
shall not make or allow to be made any alterations, additions or improvements
to the Premises (collectively, “Alterations”),
without first obtaining the written consent of Landlord, which shall not be
unreasonably withheld.  Prior to
commencing any Alterations and as a condition to obtaining Landlord’s consent,
Tenant shall deliver to Landlord plans and specifications reasonably acceptable
to Landlord; names and addresses of contractors reasonably acceptable to
Landlord; copies of contracts; necessary permits and approvals; evidence of
contractor’s and subcontractor’s insurance in accordance with Section 13
hereof; and, to the extent the cost of such Alterations shall exceed $500,000
in the aggregate in any twelve (12) month period, a payment bond or other
security (provided, however, that Tenant’s obligation to provide security with
respect to the Initial Alterations shall be governed by Exhibit D), all in form and amount satisfactory to Landlord.  Tenant shall be responsible for insuring that
all such persons procure and maintain insurance coverage against such risks, in
such amounts and with such companies as Landlord may reasonably require.  All Alterations shall be constructed in a
good and workmanlike manner using Building standard materials or other new
materials of equal or greater quality. 
Landlord, to the extent reasonably necessary to avoid any disruption to
the tenants and occupants of the Building, shall have the right to designate
reasonable rules, regulations and procedures for the performance of work in the
Building.


 


12
















 


Upon completion of the Alterations, Tenant shall deliver to Landlord “as-built”
plans, contractor’s affidavits and full and final waivers of lien and receipted
bills covering all labor and materials. 
All Alterations shall comply with the insurance requirements and with
applicable codes, ordinances, laws and regulations.  Tenant shall reimburse Landlord within thirty
(30) days following written demand therefor for all reasonable sums, if any,
expended by Landlord for third party examination of the architectural,
mechanical, electrical and plumbing plans for any Alterations.  In addition, if Landlord so requests,
Landlord shall be entitled to oversee the construction of any Alterations that
may adversely affect the structure of the Building or any of the mechanical,
electrical, plumbing or life safety systems of the Building.  If Landlord elects to oversee such work,
Landlord shall be entitled to receive a fee for such oversight in an amount
equal to three percent (3%) of the cost of such Alterations (provided, however,
that the fee for Landlord’s oversight of the Initial Alterations shall be
governed by Exhibit D).  Landlord’s approval of Tenant’s plans and
specifications for any Alterations performed for or on behalf of Tenant shall
not be deemed to be representation by Landlord that such plans and
specifications comply with applicable insurance requirements, building codes,
ordinances, laws or regulations or that the Alterations constructed in
accordance with such plans and specifications will be adequate for Tenant’s
use.  Notwithstanding anything in this Section 9B
to the contrary, Landlord’s consent shall not be required for Alterations not
costing more than $10,000 each project and consisting solely of painting, wall
covering and carpeting or similar decorating work or furnishings (so long as
such work does not involve hazardous materials, does not affect base building
systems or the structure of the Building, and is not visible from the outside
the Premises) and Tenant may perform such Alterations, so long as Tenant
informs Landlord in reasonable detail of the nature of the Alterations and
otherwise complies with the provisions of this Section 9B.


 


C.            Landlord
shall perform all maintenance, repairs and replacements reasonably necessary to
keep in good condition and working order (a) the heating, ventilating, air
conditioning, plumbing, security, electrical, life safety and other mechanical
systems and equipment of the Building (except to the extent exclusively serving
the Premises or where the maintenance and repair of such systems and
equipment is otherwise the specific responsibility of Tenant under this
Lease), (b) the Common Areas of the Building, (c) the structure of the
Building (including, without limitation, the roof, exterior walls and exterior
windows and foundation thereof), and (d) common restrooms.


 


10.   Use of Electrical Services by Tenant.  All
electricity used by Tenant in the Premises shall be paid for by Tenant by a
separate charge billed directly to Tenant by Landlord based on Landlord’s good
faith estimate of Tenant’s use of electricity in the Premises and payable by
Tenant as Additional Rent within thirty (30) days after billing.  As soon as is practical following the end of
each calendar year during the Lease Term, Landlord shall furnish to Tenant a
statement of Tenant’s actual use of electricity in the Premises for the
previous calendar year based upon Landlord’s reading of the check meters
installed in the Premises.  If for any
calendar year the Additional Rent collected for the prior year, as a result of
Landlord’s estimate of Tenant’s use of electricity in the Premises, is in
excess of the amount owed by Tenant on account of its actual use of electricity
in the Premises such prior year, then Landlord shall refund to Tenant any
overpayment (or at Landlord’s option apply such amount against Additional Rent
due or to become due hereunder).  


 


13

















 


Likewise, Tenant shall pay to
Landlord, within thirty (30) days after Landlord’s written demand, any
underpayment with respect to the prior year whether or not the Lease has
terminated prior to receipt by Tenant of a statement for such underpayment, it
being understood that this clause shall survive the expiration of the Lease.  Landlord shall have the right at any time and
from time-to-time during the Lease Term to contract for electricity service
from such providers of such services as Landlord shall elect (each being an “Electric Service Provider”). 
Tenant shall cooperate with Landlord, and the applicable Electric
Service Provider, at all times and, as reasonably necessary, shall allow
Landlord and such Electric Service Provider reasonable access to the Building’s
electric lines, feeders, risers, wiring, and any other machinery within the
Premises.  Tenant’s use of electrical
services furnished by Landlord shall not exceed in voltage, rated capacity, or
overall load that which is standard for the Building.  In the event Tenant shall request that it be
allowed to consume electrical services in excess of Building standard, Landlord
may refuse to consent to such usage (provided, however, that Landlord may not
restrict use of the Emergency Generator in compliance with the terms of this
Lease) or may consent upon such conditions as Landlord reasonably elects, and
all such additional usage shall be paid for by Tenant as Additional Rent.  Landlord shall, at its sole cost and expense,
install a check meter in (a) the First Additional Space prior to the First
Additional Space Rent Commencement Date, and (b) the Second Additional
Space prior to the Second Additional Space Commencement Date.  Tenant shall have the right, at its sole cost
and expense, to require Landlord to install a check meter in the Original
Premises, which Landlord shall do promptly following Tenant’s request
therefor.  In the event that any portion
of the Premises is not check-metered from time-to-time, then Tenant shall pay
for its electricity usage based on Landlord’s engineer’s reasonable estimate of
such usage.


 


11.   Assignment and Subletting.


 


A.            Except in
connection with a Permitted Transfer (defined in Section 11E below),
Tenant shall not assign, sublease, transfer or encumber any interest in this
Lease or allow any third party to use any portion of the Premises (collectively
or individually, a “Transfer”)
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld.  Without
limitation, it is agreed that Landlord’s consent shall not be considered
unreasonably withheld if: (1) the proposed transferee’s financial
condition is not adequate for the obligations such transferee is assuming in
connection with the proposed Transfer; (2) the transferee’s business or
reputation is not suitable for the Building considering the business and
reputation of the other tenants and the Building’s prestige, or the proposed
transfer would result in a violation of another tenant’s rights under its lease
at the Building; (3) the transferee is a governmental agency, (4) the
transferee is an occupant of the Building (unless Landlord, in its reasonable
discretion, has determined that it can not offer such tenant alternate space in
the Building which will satisfy such tenant’s requirements for additional
space); (5) an Event of Default has occurred and is continuing; (6) any
portion of the Building or the Premises would likely become subject to
additional or different laws as a consequence of the proposed Transfer; or (7) Landlord
or its leasing agent has received a proposal from or made a proposal to the
proposed transferee to lease space in the Building within six (6) months
prior to Tenant’s delivery of written notice of the proposed Transfer to
Landlord.  Any attempted Transfer in
violation of this Section 11, shall, exercisable in Landlord’s sole and
absolute discretion, be void.  Consent by
Landlord to one or more Transfers shall not operate as a waiver of Landlord’s
rights to approve any 


 


14

















 


subsequent Transfers.  In no event
shall any Transfer or Permitted Transfer release or relieve Tenant from any
obligation under this Lease or any liability hereunder.


 


B.            If Tenant
requests Landlord’s consent to a Transfer, Tenant shall submit to Landlord (i) financial
statements for the proposed transferee, (ii) a copy of the proposed assignment
or sublease, and (iii) such other information as Landlord may reasonably
request.  After Landlord’s receipt of the
required information and documentation, Landlord shall either: (1) consent
or reasonably refuse consent to the Transfer in writing; (2) in the event
of a proposed assignment of this Lease, terminate this Lease effective the date
that the proposed Transfer would have come into effect; and (3) in the
event of a proposed subletting of more than twenty-five percent (25%) of the
rentable area of the Premises, terminate this Lease with respect to portion of
the Premises which Tenant proposes to sublease effective the date the proposed
Transfer would have come into effect.  In
addition, Tenant shall reimburse Landlord for its actual reasonable costs and
expenses (including, without limitation, reasonable attorney’s fees) incurred
by Landlord in connection with Landlord’s review of such proposed Transfer or
Permitted Transfer.


 


C.            Tenant
shall pay to Landlord fifty percent (50%) of all cash and other consideration
which Tenant receives as a result of a Transfer that is in excess of the rent
payable to Landlord hereunder for the portion of the Premises and Lease Term
covered by the Transfer within ten (10) days following receipt thereof by
Tenant.  In determining excess rent in
connection with a Transfer, Tenant may, on an amortized basis, deduct the
following expenditures resulting from such Transfer to the extent such
expenditures are reasonable: (1) brokerage and marketing fees; (2) legal
fees; (3) construction costs; and (4) financial concessions granted
in such Transfer.


 


D.            Except as
provided below with respect to a Permitted Transfer, if Tenant is a
corporation, limited liability company, partnership or similar entity, and the
person, persons or entity which owns or controls a majority of the voting
interests at the time changes for any reason (including but not limited to a
merger, consolidation or reorganization), such change of ownership or control
shall constitute a Transfer; provided, however, that the foregoing shall not
apply (i) so long as Tenant is an entity whose outstanding stock is listed
on a nationally recognized security exchange, or (ii) if at least eighty
percent (80%) of its voting stock is owned by another entity, the voting stock
of which is so listed.


 


E.             Notwithstanding
the foregoing, the foregoing provisions shall not be applicable and Tenant may
assign its entire interest under this Lease or sublet all or any portion of the
Premises (i) to any entity controlling or controlled by or under common
control with Tenant or (ii) to any successor to Tenant by purchase,
merger, consolidation or reorganization (hereinafter, collectively, referred to
as “Permitted  Transfer”)
without the consent of Landlord, provided: (1) an Event of Default has not
occurred and is then continuing; (2) if such proposed transferee is a
successor to Tenant by purchase, said proposed transferee shall acquire all or
substantially all of the assets of Tenant’s business or, if such proposed
transferee is a successor to Tenant by merger, consolidation or reorganization,
the continuing or surviving entity shall own all or substantially all of the 


 


15

















 


assets of Tenant; (3) with respect to a Permitted Transfer to a proposed
transferee described in clause (ii), such proposed transferee shall have a
net worth which is at least equal to Tenant’s net worth as of the day prior to
the series of events culminating in the proposed purchase, merger,
consolidation or reorganization as computed in accordance with generally
accepted accounting principles consistently applied and as evidenced to
Landlord; and (4) Tenant shall give Landlord written notice at least ten (10) days
prior to the effective date of the proposed purchase, merger, consolidation or
reorganization.


 


12.   Mechanic’s Liens.  Tenant will not permit any mechanic’s liens
or other liens to be placed upon the Property with respect to any work
performed by or at the direction of Tenant or anyone claiming by, through or under
Tenant.  If a lien is attached to the
Property as a result of any act or omission of Tenant or anyone claiming by,
through or under Tenant, then, in addition to any other right or remedy of
Landlord, Landlord may, but shall not be obligated to, discharge the same.  Any amount paid by Landlord for any of the
aforesaid purposes including, but not limited to, reasonable attorneys’ fees,
shall be paid by Tenant to Landlord within thirty (30) days after written
demand as Additional Rent. Tenant shall within fifteen (15) days of receiving
such written notice of lien or claim bonded over or have such lien or claim
released of record.  Tenant’s failure to
comply with the provisions of the foregoing sentence shall be deemed an Event
of Default entitling Landlord to exercise all of its remedies therefor without
the requirement of any additional notice or cure period.


 


13.   Insurance.


 


A.            Landlord
shall, at all times during the Lease Term, procure and maintain: (i) policies
of insurance covering loss or damage to the Property in an amount equal to the
full replacement cost of the Building, including leasehold improvements in the
Premises, which shall provide protection against loss by fire and other
all-risk casualties including earthquake and flood and such other property
insurance as may be required by Landlord’s mortgagee or as otherwise desired by
Landlord, and (ii) commercial general liability insurance applicable to
the Building and the Common Areas, providing a minimum limit of $5,000,000.00
per occurrence.


 


B.            Tenant
shall procure and maintain, at its expense, (i) all-risk (special form)
property insurance in an amount equal to the full replacement cost of Tenant’s
Property located in the Premises; (ii) a policy or policies of general
liability and umbrella or excess liability insurance applying to Tenant’s
operations and use of the Premises, providing a minimum limit of $3,000,000.00
per occurrence and in the aggregate, naming Landlord and Landlord’s Building
manager as additional insureds, (iii) automobile liability insurance
covering owned, non-owned and hired vehicles in an amount not less than a
combined single limit of $1,000,000.00 per accident, and (iv) workers’
compensation insurance in accordance with the laws of the State in which the
Property is located and employer’s liability insurance in an amount not less
than $1,000,000.00 each accident, $1,000,000.00 disease-each employee and
policy limit, with the insurance policies required under this clause (iv) to
be endorsed to waive the insurance carriers’ right of subrogation.  Tenant shall maintain the foregoing insurance
coverages in effect commencing on the earlier to occur of 


 


16

















 


the Commencement Date and the date Tenant takes possession of the
Premises, and continuing to the expiration or earlier termination of the Lease
Term.


 


C.            The
insurance requirements set forth in this Section 13 are independent of the
waiver, indemnification, and other obligations under this Lease and will not be
construed or interpreted in any way to restrict, limit or modify the waiver,
indemnification and other obligations or to in any way limit any party’s
liability under this Lease.  In addition
to the requirements set forth in Sections 13 and 14, the insurance
required of Tenant under this Lease must be issued by an insurance company with
a rating of no less than A-VIII in the current Best’s Insurance Guide or that
is otherwise reasonably acceptable to Landlord, and admitted to engage in the
business of insurance in the state in which the Building is located; be primary
insurance for all claims under it and provide that any insurance carried by
Landlord, Landlord’s Building manager, and Landlord’s lenders is strictly
excess, secondary and noncontributing with any insurance carried by Tenant; and
provide that insurance may not be cancelled, nonrenewed or the subject of
change in coverage of available limits of coverage, except upon at least ten (10) days’
prior written notice to Landlord and Landlord’s lenders.  Tenant will deliver to Landlord a certificate
of insurance on all policies procured by Tenant in compliance with Tenant’s
obligations under this Lease on or before the date Tenant first occupies any
portion of the Premises, at least ten (10) days before the expiration date
of any policy and upon the renewal of any policy.  Landlord shall have the right to approve all
deductibles and self-insured retentions under Tenant’s policies, which approval
shall not be unreasonably withheld, conditioned or delayed.


 


D.            Notwithstanding
any other term or provision of this Lease, neither Landlord nor Tenant shall be
liable (by way of subrogation or otherwise) to the other party (or to any
insurance company insuring the other party) for any loss or damage to any of
the property of Landlord or Tenant, as the case may be, with respect to their
respective property, the Building, the Property or the Premises or any addition
or improvements thereto, or any contents therein, to the extent covered by
insurance carried or required to be carried by a party hereto even though such
loss might have been occasioned by the negligence or willful acts or omissions
of the Landlord or Tenant or their respective employees, agents, contractors or
invitees. Landlord and Tenant shall give each insurance company which issues
policies of insurance, with respect to the items covered by this waiver,
written notice of the terms of this mutual waiver, and shall have such
insurance policies properly endorsed, if necessary, to prevent the invalidation
of any of the coverage provided by such insurance policies by reason of such
mutual waiver.  For the purpose of the
foregoing waiver, the amount of any deductible applicable to any loss or damage
shall be deemed covered by, and recoverable by the insured under the insurance
policy to which such deductible relates.


 


14.   Indemnity.  To the extent not expressly prohibited by law,
Landlord and Tenant each (in either case, the “Indemnitor”)
agree to hold harmless and indemnify the other and the other’s agents,
partners, shareholders, members, officers, directors, beneficiaries and
employees (collectively, the “Indemnitees”)
from any losses, damages, judgments, claims, expenses, costs and liabilities
imposed upon or incurred by or asserted against the Indemnitees, including
without 


 


17

















 


limitation
reasonable attorneys’ fees and expenses, for death or injury to, or damage to
property of, third parties, other than the Indemnitees, that may arise from the
negligence or willful misconduct of Indemnitor or any of Indemnitor’s agents,
members, partners or employees.  Such
third parties shall not be deemed third party beneficiaries of this Lease.  If any action, suit or proceeding is brought
against any of the Indemnitees by reason of the negligence or willful
misconduct of Indemnitor or any of Indemnitor’s agents, members, partners or
employees, then Indemnitor will, at Indemnitor’s expense and at the option of
said Indemnitees, by counsel reasonably approved by said Indemnitees, resist
and defend such action, suit or proceeding. 
In addition, to the extent not expressly prohibited by law, Tenant
agrees to hold harmless and indemnify Landlord and Landlord’s Indemnitees from
any losses, damages, judgments, claims, expenses, costs and liabilities imposed
upon or incurred by or asserted against Landlord or Landlord’s Indemnitees,
including reasonable attorneys’ fees and expenses, for death or injury to, or
damage to property of, third parties (other than Landlord’s Indemnitees) that
may arise from any act or occurrence in the Premises, except to the extent
caused by the negligence, default (beyond any applicable notice and cure
period) or willful misconduct of Landlord or Landlord’s Indemnitees.


 


15.   Damages from Certain Causes.  To the extent not expressly prohibited by
law, Landlord shall not be liable to Tenant or Tenant’s employees, contractors,
agents, invitees or customers, for any injury to person or damage to property
sustained by Tenant or any such party or any other person claiming through Tenant
resulting from any accident or occurrence in the Premises or any other portion
of the Building caused by (i) the acts or omissions of other tenants of
the Building or of any other persons whomsoever, or (ii) events of Force
Majeure.  Nothing in this Section 15
shall be deemed to limit Tenant’s remedies as set forth in, and subject to the
terms of, Section 6D of this Lease.


 


16.   Casualty Damage.  If the Premises or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord.  In the event that (a) the
Building shall be so damaged that restoration of the Building shall require
more than the lesser of (i) one (1) year, or (ii) half of
then-remaining Term of this Lease (whether or not the Premises shall have been
damaged by such casualty); or (b) Landlord’s mortgagee should require that
the insurance proceeds payable as a result of a casualty be applied to the
payment of the mortgage debt; or (c) there shall be any material uninsured
loss to the Building, Landlord may, at its option, terminate this Lease by
notifying Tenant in writing of such termination within ninety (90) days after
the date of such casualty.  If Landlord
does not thus elect to terminate this Lease, Landlord shall commence and proceed
with reasonable diligence to restore the Building, and the improvements located
within the Premises to substantially the same condition in which it was
immediately prior to the happening of the casualty.  Notwithstanding the foregoing, Landlord’s
obligation to restore the Building, and the improvements located within the
Premises shall not require Landlord to expend for such repair and restoration
work more than the insurance proceeds actually received by Landlord as a result
of the casualty.  When the repairs
described in the preceding two sentences have been completed by Landlord,
Tenant shall complete the restoration of all furniture, fixtures and equipment
which are necessary to permit Tenant’s reoccupancy of the Premises for the
conduct of its business.  Landlord shall
not be liable for any inconvenience or annoyance to Tenant or injury to the
business of Tenant resulting in any way from such damage or the repair thereof,
except that Rent shall be abated from the date of the damage or destruction for
any portion of the Premises that is unusable by Tenant, which abatement shall
be in the same 


 


18

















 


proportion that the Rentable Area
of the Premises which is unusable by Tenant bears to the total Rentable Area of
the Premises.


 


Notwithstanding anything
in this Section to the contrary, if all or any portion of the Premises
shall be made untenantable by a fire or other casualty, Landlord shall with
reasonable promptness, cause an architect or general contractor selected by
Landlord to estimate the amount of time required to substantially complete
repair and restoration of the Premises and make the Premises tenantable again,
using standard working methods (the “Restoration Completion
Estimate”).  If the Restoration
Completion Estimate indicates that the Premises cannot be made tenantable
within twelve (12) months from the date the repair and restoration is started,
Tenant shall have the right to terminate this Lease by giving written notice to
Landlord of such election within thirty (30) days after its receipt of the
Restoration Completion Estimate; provided, however, that Tenant shall not have
the right to terminate this Lease in the event that the fire or casualty in
question was caused by the negligence or intentional misconduct of Tenant.  If the Restoration Completion Estimate
indicates that the Premises can be made tenantable within twelve (12) months
from the date the repair and restoration is started and Landlord has not
otherwise exercised its right to terminate the Lease pursuant to the terms
hereof, or if the Restoration Completion Estimate indicates that the Premises
cannot be made tenantable within twelve (12) months but Tenant does terminate
this Lease pursuant to this Section, Landlord shall proceed with reasonable
promptness to repair and restore the Premises. 
If Tenant does not terminate this Lease pursuant to this Section and
the Premises are not made tenantable within a period of time equal to the
longer of (i) twelve (12) months or (ii) the time for completion set
forth in the Restoration Completion Estimate and, so long as Landlord promptly
commences such restoration upon receipt of the insurance proceeds payable to
Landlord as a result of the casualty and proceeds with reasonable diligence (subject
to Force Majeure) to complete such restoration, an additional period equal to
twenty percent (20%) of the Restoration Completion Estimate (the “Outside Completion Period”), then Tenant shall have the
right to terminate this Lease by giving written notice to Landlord of such
election within thirty (30) days of the expiration of the Outside Completion
Period; provided that if such restoration is completed within such thirty (30)
day period, such termination notice shall be of no force and effect.


 


17.   Condemnation.  If the whole or any substantial part of the
Premises or if the Building or any portion thereof which would leave the
remainder of the Building unsuitable for use comparable to its use on the
Commencement Date, or if the land on which the Building is located or any
material portion thereof, shall be taken or condemned for any public or
quasi-public use under governmental law, ordinance or regulation, or by right
of eminent domain, or by private purchase in lieu thereof, then Landlord may,
at its option, terminate this Lease and Rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said
Premises or said portion of the Building or land shall occur; provided,
however, that Landlord may only terminate this Lease as a result of a taking or
condemnation solely of a portion of the land on which the Building is located
if, in Landlord’s reasonable judgment, such taking adversely affects the
operation of the Building or the Common Areas. 
If the whole or any substantial part of the Premises or if the Building
or any portion thereof which would leave the Premises inaccessible or
unsuitable for the Permitted Use, shall be taken or condemned for any public or
quasi-public use under governmental law, ordinance or regulation, or by right
of eminent domain, or by private purchase in lieu thereof, then Tenant may, at
its option, terminate this Lease and Rent shall be 


 


19

















 


abated during the unexpired portion
of this Lease, effective when the physical taking of said Premises or said
portion of the Building shall occur.  If
this Lease is not terminated, the Rent for any portion of the Premises so taken
or condemned or affected by the taking shall be abated during the unexpired
Lease Term effective when the physical taking shall occur.  All compensation awarded for any taking or
condemnation, or sale proceeds in lieu thereof, shall be the property of
Landlord, and Tenant shall have no claim thereto, the same being hereby expressly
waived by Tenant, except for any portions of such award or proceeds which are
specifically allocated by the condemning or purchasing party for the taking of
or damage to trade fixtures of Tenant and moving costs, which Tenant
specifically reserves to itself.


 


18.   Events of Default.  The following events shall be deemed to be “Events of Default” under this Lease:  (i) Tenant fails to pay any Rent when
due; provided that the first two (2) such failures during any consecutive
twelve (12) month period during the Term shall not be an Event of Default if
Tenant pays the amount due within five (5) days after Tenant’s receipt of
written notice from Landlord that such payment was not made when due, (ii) Tenant
fails to perform any other provision of this Lease not described in this Section 18,
and such failure is not cured within thirty (30) days after written notice from
Landlord, however, other than with respect to a hazardous condition, if Tenant’s
failure to comply cannot reasonably be cured within such thirty (30) day
period, Tenant shall be allowed additional time (not to exceed one hundred
twenty (120) additional days) as is reasonably necessary to cure the failure so
long as Tenant begins the cure within thirty (30) days and diligently pursues
the cure to completion; (iii) Tenant fails to observe or perform any of
the covenants with respect to (a) assignment and subletting as set forth
in Section 11, (b) mechanic’s liens as set forth in Section 12, (c) insurance
as set forth in Section 13 or (d) delivering subordination agreements
or estoppel certificates as set forth in Section 25, (iv) the
leasehold interest of Tenant is levied upon or attached under process of law
and not discharged within sixty (60) days thereafter; (v) Tenant or any
guarantor of this Lease dies or dissolves; (vi) Tenant abandons the
Premises (meaning Tenant vacates the Premises and fails to perform any of its
obligations hereunder); or (vii) any voluntary or involuntary proceedings
are filed by or against Tenant or any guarantor of this Lease under any
bankruptcy, insolvency or similar laws and, in the case of any involuntary
proceedings, are not dismissed within sixty (60) days after filing.


 


19.   Remedies.


 


A.            Upon the
occurrence of any Event of Default, Landlord shall have the following rights
and remedies, in addition to those allowed by law or equity, any one or more of
which may be exercised without further notice to or demand upon Tenant and
which may be pursued successively or cumulatively as Landlord may elect:


 


(1)                                  Landlord may re-enter the Premises and attempt to
cure any default of Tenant, in which event Tenant shall, upon demand, reimburse
Landlord as Additional Rent for all reasonable costs and expenses which
Landlord incurs to cure such default;


 


(2)                                  Landlord may terminate this Lease by giving to
Tenant notice of Landlord’s election to do so, in which event the Lease Term
shall end, and all right, title 


 


20

















 


and interest of Tenant hereunder shall expire, on the date stated in such
notice;


 


(3)                                  Landlord may terminate the right of Tenant to
possession of the Premises without terminating this Lease by giving notice to
Tenant that Tenant’s right to possession shall end on the date stated in such
notice, whereupon the right of Tenant to possession of the Premises or any part
thereof shall cease on the date stated in such notice; and


 


(4)                                  Landlord may enforce the provisions of this Lease by
a suit or suits in equity or at law for the specific performance of any
covenant or agreement contained herein, or for the enforcement of any other
appropriate legal or equitable remedy, including recovery of all moneys due or
to become due from Tenant under any of the provisions of this Lease.


 


Landlord shall not be required to serve Tenant with any notices or
demands as a prerequisite to its exercise of any of its rights or remedies
under this Lease, other than those notices and demands specifically required
under this Lease.  LANDLORD’S NOTICE OF ANY DEFAULT MAY SERVE
AS ANY STATUTORY DEMAND OR NOTICE WHICH IS A PREREQUISITE TO LANDLORD’S
COMMENCEMENT OF EVICTION PROCEEDINGS AGAINST TENANT, INCLUDING THE DEMANDS AND
NOTICES SPECIFIED IN ANY APPLICABLE STATE STATUTE OR CASE LAW, AND NO FURTHER NOTICE SHALL BE
REQUIRED.  TENANT AGREES THAT IT
SHALL NOT INTERPOSE ANY NON-MANDATORY COUNTERCLAIM AND WAIVES ANY RIGHT TO
TRIAL BY JURY IN ANY LAWSUIT BROUGHT BY LANDLORD TO RECOVER POSSESSION OF THE
PREMISES FOLLOWING LANDLORD’S TERMINATION OF THIS LEASE OR THE RIGHT OF TENANT
TO POSSESSION OF THE PREMISES PURSUANT TO THE TERMS OF THIS LEASE AND ON ANY
CLAIM FOR DELINQUENT RENT WHICH LANDLORD MAY JOIN IN ITS LAWSUIT TO
RECOVER POSSESSION.


 


B.            If
Landlord exercises either of the remedies provided in Sections 19A(2) or
19A(3), Tenant shall surrender possession and vacate the Premises and
immediately deliver possession thereof to Landlord, and Landlord may re-enter
and take complete and peaceful possession of the Premises, with process of law,
and Landlord may remove all occupants and property therefrom, using such force
as may be necessary to the extent allowed by law, without being deemed guilty
in any manner of trespass, eviction or forcible entry and detainer and without
relinquishing Landlord’s right to Rent or any other right given to Landlord
hereunder or by operation of law.


 


C.            If
Landlord terminates the right of Tenant to possession of the Premises without
terminating this Lease, Landlord shall have the right to immediate recovery of
all amounts then due hereunder.  Such
termination of possession shall not release Tenant, in whole or in part, from
Tenant’s obligation to pay Rent hereunder for the full Lease Term, and Landlord
shall have the right, from time to time, to recover from Tenant, and Tenant
shall remain liable for, all Rent accruing as it becomes due under this Lease
during the 


 


21

















 


period from the date of such notice of termination of possession to the
stated end of the Lease Term.  In any
such case, Landlord shall make reasonable efforts, in accordance with Section 19E
hereof, to relet the Premises.  In
attempting to relet the Premises, Landlord may make repairs, alterations and
additions in or to the Premises and redecorate the same to the extent
reasonably deemed by Landlord necessary or desirable, and Tenant upon demand
shall pay the reasonable cost of all of the foregoing together with Landlord’s
reasonable expenses of reletting.  The
rents from any such reletting shall be applied first to the payment of the
expenses of reentry, redecoration, repair and alterations and the expenses of
reletting (including reasonable attorneys’ fees and brokers’ fees and
commissions) and second to the payment of Rent herein provided to be paid by
Tenant.  Any excess or residue shall
operate only as an offsetting credit against the amount of Rent due and owing
as the same thereafter becomes due and payable hereunder.


 


D.            If this
Lease is terminated by Landlord, Landlord shall be entitled to recover from
Tenant all Rent accrued and unpaid for the period up to and including such
termination date, as well as all other additional sums payable by Tenant, or
for which Tenant is liable or for which Tenant has agreed to indemnify
Landlord, which may be then owing and unpaid, and all reasonable costs and
expenses, including court costs and reasonable attorneys’ fees incurred by
Landlord in the enforcement of its rights and remedies hereunder.  In addition, Landlord shall be entitled to
recover as damages for loss of the bargain and not as a penalty (1) the
aggregate sum which at the time of such termination represents the excess, if
any, of the present value of the aggregate Rent which would have been payable
after the termination date had this Lease not been terminated, including,
without limitation, the amount projected by Landlord to represent Additional
Rent for the remainder of the Lease Term, over the then present value of the
then aggregate fair rent value of the Premises for the balance of the Lease
Term, such present worth to be computed in each case on the basis of a ten
percent (10%) per annum discount from the respective dates upon which such Rent
would have been payable hereunder had this Lease not been terminated, and (2) any
damages in addition thereto, including without limitation reasonable attorneys’
fees and court costs, which Landlord sustains as a result of the breach of any
of the covenants of this Lease other than for the payment of Rent.


 


E.             Landlord
shall use commercially reasonable efforts to mitigate any damages resulting
from an Event of Default by Tenant under this Lease.  Landlord’s obligation to mitigate damages
after an Event of Default by Tenant under this Lease shall be satisfied in full
if Landlord undertakes to lease the Premises to another tenant (a “Substitute Tenant”) in accordance with the following
criteria:  (1) Landlord shall have
no obligation to solicit or entertain negotiations with any other prospective
tenants for the Premises until Landlord obtains full and complete possession of
the Premises including, without limitation, the final and unappealable legal
right to relet the Premises free of any claim of Tenant; (2) Landlord
shall not be obligated to lease or show the Premises, on a priority basis, or
offer the Premises to a prospective tenant when other premises in the Building
suitable for that prospective tenant’s use are (or soon will be) available; (3) Landlord
shall not be obligated to lease the Premises to a Substitute Tenant for a rent
less than the current fair market rent then prevailing for similar uses in
comparable buildings in the same market area as the Building, nor shall
Landlord be obligated to enter into a new lease under other terms and 


 


22

















 


conditions that are unacceptable to Landlord under Landlord’s then current
leasing policies for comparable space in the Building; (4) Landlord shall
not be obligated to enter into a lease with a Substitute Tenant whose use
would: (i) violate any restriction, covenant, or requirement contained in
the lease of another tenant of the Building; (ii) adversely affect the
reputation of the Building; or (iii) be incompatible with the operation of
the Building; and (5) Landlord shall not be obligated to enter into a
lease with any proposed Substitute Tenant which does not have, in Landlord’s
reasonable opinion, sufficient financial resources to operate the Premises in a
first class manner and to fulfill all of the obligations in connection with the
lease thereof as and when the same become due.


 


F.             The
receipt by Landlord of less than the full Rent due shall not be construed to be
other than a payment on account of Rent then due, nor shall any statement on
Tenant’s check or any letter accompanying Tenant’s check be deemed an accord
and satisfaction, and Landlord may accept such payment without prejudice to
Landlord’s right to recover the balance of the Rent due or to pursue any other
remedies provided in this Lease.  The
acceptance by Landlord of Rent hereunder shall not be construed to be a waiver
of any breach by Tenant of any term, covenant or condition of this Lease.  No act or omission by Landlord or its
employees or agents during the Lease Term shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept such a surrender shall be
valid unless in writing and signed by Landlord.


 


G.            In the
event of any litigation between Tenant and Landlord to enforce or interpret any
provision of this Lease or to enforce any right of either party hereto, the
unsuccessful party to such litigation shall pay to the successful party all costs
and expenses, including reasonable attorney’s fees, incurred therein.  In addition, Landlord shall be entitled to
recover from Tenant any and all reasonable fees (including, without limitation,
reasonable attorney’s fees) incurred in or related to bankruptcy proceedings
related to Tenant, including reasonable fees (including, without limitation,
reasonable attorney’s fees) incurred in or related to issues and events that
are peculiar to bankruptcy.


 


20.   Landlord’s Default.  In no event shall Landlord be in default
unless notice thereof has been given to Landlord (and all mortgagees of which
Tenant has notice and has received current notice addresses for) and Landlord
(or any such mortgagee at its sole discretion) fails to cure such default
within 30 days (provided, however, that such 30 day period shall be reasonably
extended if such performance begins within such period and thereafter is
diligently pursued, or if such mortgagee notifies Tenant within such period
that it intends to cure on behalf of Landlord and thereafter begins curing
within such period, or if later within 30 days after acquiring possession of
the Property if the cure requires the mortgagee to obtain possession of the
Property, and diligently pursues curing with reasonable promptness).  Any mortgagee notice and cure periods set
forth in any subordination agreements then in effect under Section 25
shall control to the extent the same differ from the foregoing.  Nothing in this Section shall be deemed
to limit Tenant’s remedies under Section 6D of this Lease.


 


21.   No Waiver.  Failure of either party to declare any
default immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not constitute a waiver of such
default, nor shall it constitute an estoppel against the non-defaulting party,
but the 


 


23

















 


non-defaulting party shall have the
right to declare the default at any time and take such action as is lawful or
authorized under this Lease.  Failure by
non-defaulting party to enforce its rights with respect to any one default
shall not constitute a waiver of its rights with respect to any subsequent
default.


 


22.   Peaceful Enjoyment.  Tenant shall, and may peacefully have, hold,
and enjoy the Premises, subject to the other terms hereof, provided that Tenant
pays the Rent and other sums herein recited to be paid by Tenant and timely
performs all of Tenant’s covenants and agreements herein contained within
applicable grace periods.


 


23.   Intentionally Deleted.


 


24.   Holding Over.  If Tenant continues to occupy the Premises
after the expiration or other termination of this Lease or the termination of
Tenant’s right of possession, such occupancy shall be that of a tenancy at
sufferance.  Tenant shall, throughout the
entire holdover period, be subject to all the terms and provisions of this
Lease and shall pay for its use and occupancy an amount (on a per diem basis)
equal to (i) one hundred fifty percent (150%) of the Base Rent and
Additional Rent due under this Lease for the last full month of the term hereof
during the first sixty (60) days of such holdover, and (ii) one hundred
seventy-five percent (175%) of the Base Rent and Additional Rent due under this
Lease for the last full month of the term hereof thereafter.  No holding over by Tenant or payments of
money by Tenant to Landlord after the expiration of the Lease Term shall be
construed to extend the Lease Term or prevent Landlord from recovery of
immediate possession of the Premises by summary proceedings or otherwise.  Tenant shall also be liable to Landlord for
all direct and consequential damages which Landlord may suffer by reason of any
holding over by Tenant in excess of sixty (60) days.


 


25.   Subordination to Mortgage; Estoppel Certificate.  Tenant
accepts this Lease subject and subordinate to any ground lease, mortgage, deed
of trust or other lien presently existing or hereafter arising upon the
Premises, or upon the Building or the Property and to any renewals,
modifications, refinancings and extensions thereof, but Tenant agrees that any
such mortgagee shall have the right at any time to subordinate such mortgage,
deed of trust or other lien to this Lease on such terms and subject to such
conditions as such mortgagee may deem appropriate in its discretion.  The provisions of the foregoing sentence
shall be self-operative and no further instrument of subordination shall be
required. However, Landlord is hereby irrevocably vested with full power and
authority to subordinate this Lease to any mortgage, deed of trust or other
lien now existing or hereafter placed upon the Premises, or the Building or the
Property and Tenant agrees within ten (10) days after written demand to
execute such further instruments subordinating this Lease or attorning to the
holder of any such liens as Landlord may request.  If Tenant fails to execute any subordination
or other agreement required by this Section promptly as requested, Tenant
hereby irrevocably constitutes Landlord as its attorney-in-fact to execute such
instrument in Tenant’s name, place and stead, it being agreed that such power
is coupled with an interest in Landlord and is accordingly irrevocable.  Landlord shall obtain, within thirty (30)
days after the execution of this Lease, a subordination, non-disturbance and
attornment agreement for the benefit of Tenant from the mortgagee currently
holding a mortgage on the Property in the form attached hereto as Exhibit I.  In
the event that any future mortgagee or ground lessor elects to subordinate this
Lease to its mortgage or ground lease, as applicable, Landlord shall, within
ninety (90) days


 


24
















 


after such mortgage or ground lease becomes effective, obtain a
subordination, non-disturbance and attornment agreement for the benefit of
Tenant from such mortgagee or ground lessor in such mortgagee’s or ground
lessor’s customary form, and notwithstanding anything to the contrary contained
in this Section 25, this Lease shall not be subordinated to such mortgage
or ground lease until such subordination, non-disturbance and attornment
agreement has been delivered to Tenant.


 


Tenant agrees that it shall from time-to-time furnish within ten (10) days
after so requested by Landlord, a certificate signed by Tenant certifying as to
such matters as may be reasonably requested by Landlord.  Any such certificate may be relied upon by
any ground lessor, prospective purchaser, secured party, mortgagee or any
beneficiary under any mortgage, deed of trust on the Building or the Property
or any part thereof or interest of Landlord therein.


 


Landlord and Tenant hereby acknowledge that the terms
of the form of subordination, non-disturbance and attornment agreement (“SNDA”) attached as Exhibit I
and to which Tenant is a party provides that the lender thereunder (the “Lender”) has no obligation to fund the Construction
Allowance in accordance with the Work Letter following the date that such
Lender succeeds to the interest of Landlord hereunder.  As an accommodation to Tenant, simultaneously
with the execution of this Lease, Aslan Realty Partners III, L.L.C. (“Guarantor”) has delivered to Tenant a guaranty (the “Guaranty”) that provides Tenant with a guaranty (a copy of
which is attached as Exhibit J)
of the Landlord’s obligation to pay Tenant the Construction Allowance in
accordance with the Work Letter in the event that (i) Lender forecloses on
the Property, takes a deed in lieu of foreclosure or otherwise succeeds to
Landlord’s interest under this Lease, (ii) Lender has not agreed to fund
the Construction Allowance, and (iii) Lender does not in fact fund any
portion of the Construction Allowance when due within the period required
pursuant to this Lease.  Notwithstanding
anything in this Lease or the Guaranty to the contrary, Tenant agrees that the
Guaranty shall terminate and be of no further force or effect in the event that
(i) Landlord delivers to Tenant a substitute guaranty substantially in the
form of the Guaranty from a third party with creditworthiness reasonably
satisfactory to Tenant, (ii) the Lender agrees in writing to perform the
Guaranteed Obligations or otherwise provides Tenant with reasonably
satisfactory assurances that Tenant will receive the full economic benefit of
the Guaranteed Obligations (e.g. the Lender agrees in writing to fund the
Construction Allowance or that Tenant may offset any unfunded installments of
the Construction Allowance against Rent, whether by amendment to the SNDA or
otherwise), or (iii) Landlord places any unpaid portions of the
Construction Allowance into an escrow account held by an escrow agent
reasonably acceptable to Tenant, which escrowed funds are available to fund the
Construction Allowance to Tenant pursuant to the terms and conditions set forth
in the Work Letter.


 


26.   Notice.  Any notice
required or permitted to be given under this Lease or by law shall be deemed to
have been given if it is written and delivered in person or mailed by
Registered or Certified mail, postage prepaid, or sent by a nationally
recognized overnight delivery service to the party who is to receive such
notice at the address specified in Section 1 of this Lease (and, if no
address is listed for Tenant, notices to Tenant shall be delivered to the
Premises).  When so mailed, the notice
shall be deemed to have been given two (2) Business Days after the date it
was mailed.  When sent by overnight
delivery service, the notice shall be deemed to have been given on the next
Business Day after deposit with such overnight delivery service.  The address specified in 


 


25

















 


Section 1 of this Lease may be changed from time to time by giving
written notice thereof to the other party.


 


27.   Surrender of Premises.  Subject to the terms and provisions of Section 7
above, upon the termination of the Lease Term, or upon any termination of
Tenant’s right to possession of the Premises, Tenant will at once surrender
possession of the Premises to Landlord in substantially the same condition and
repair as existed on the Commencement Date (or such better condition as it may
be put in thereafter by Tenant), ordinary wear and tear and fire and casualty
excepted.  Tenant shall surrender to
Landlord all keys to the Premises and make known to Landlord the combination of
all combination locks which Tenant is required to leave on the Premises.


 


28.   Rights Reserved to Landlord.  Landlord reserves the following
rights, exercisable without notice, except as provided herein, and without
liability to Tenant for damage or injury to property, person or business and
without affecting an eviction or disturbance of Tenant’s use or possession or
giving rise to any claim for setoff or abatement of rent or affecting any of
Tenant’s obligations under this Lease: (1) upon thirty (30) days’ prior
notice to change the name or street address of the Building; (2) to
install and maintain signs on the exterior and interior of the Building; (3) to
designate and approve window coverings to present a uniform exterior
appearance; (4) to retain at all times and to use in appropriate
instances, pass keys to all locks within and to the Premises; (5) to
reasonably approve the weight, size, or location of heavy equipment, or
articles within the Premises; (6) to change the arrangement and location
of entrances of passageways, doors and doorways, corridors, elevators, stairs,
toilets and public parts of the Building or Property; (7) to reasonably
regulate access to telephone, electrical and other utility closets in the
Building and to require use of reasonably approved contractors for any work
involving access to the same; (8) if Tenant has vacated the Premises
during the last month of the Lease Term, to perform additions, alterations and
improvements to the Premises in connection with a reletting or anticipated
reletting thereof without being responsible or liable for the value or
preservation of any then existing improvements to the Premises and without
effectuating a surrender or entitling Tenant to any abatement of Rent; (9) to
grant to anyone the exclusive right to conduct any business or undertaking in
the Building provided Landlord’s exercise of its rights under this clause (9) shall
not be deemed to prohibit Tenant from the operation of its business in the
Premises; (10) to enter the Premises at reasonable times to inspect the
same or to show the Premises to prospective purchasers, mortgagees, tenants
(during the last twelve months of the Lease Term) or insurers, or to clean or
make repairs, alterations or additions thereto, provided that, except for any
entry in an emergency situation or to provide normal cleaning and janitorial
service, Landlord shall provide Tenant with reasonable prior notice of any
entry into the Premises; and (11) to temporarily close the Premises or the
Building to perform repairs, alterations or additions in the Premises or the
Building.  In exercising its rights under
this Section , Landlord shall make commercially reasonable efforts to
avoid unreasonably interfering with Tenant’s business operations in the
Premises.


 


29.   Miscellaneous.


 


A.            If any
term or provision of this Lease, or the application thereof, shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the application
of 


 


26

















 


such term or provision, shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.


 


B.            Tenant
agrees not to record this Lease, but the parties shall, upon Tenant’s request
therefor and at Tenant’s expense, execute and record a Notice of Lease in a
form reasonably agreed to by Tenant and Landlord.


 


C.            This Lease
and the rights and obligations of the parties hereto shall be interpreted,
construed, and enforced in accordance with the laws of the state in which the
Building is located.


 


D.            The term “Force Majeure” shall mean strikes, riots, acts of God,
shortages of labor or materials, war, acts of terrorism, governmental laws,
regulations or restrictions, or any other cause whatsoever beyond the control
of Landlord or Tenant, as the case may be. Whenever a period of time is herein
prescribed for the taking of any action by Landlord or Tenant (other than the
payment of Rent and all other such sums of money as shall become due
hereunder), such party shall not be liable or responsible for, and there shall
be excluded from the computation of such period of time, any delays due to
events of Force Majeure.


 


E.             Except as
expressly otherwise herein provided, with respect to all required acts of
Tenant, time is of the essence of this Lease.


 


F.             Landlord
shall have the right to transfer and assign, in whole or in part, all of its
rights and obligations hereunder and in the Building and Property referred to
herein, and in such event and upon such transfer Landlord shall be released
from any further obligations hereunder, and Tenant agrees to look solely to
such successor in interest of Landlord for the performance of such obligations.


 


G.            Tenant and
Landlord hereby represent and warrant to each other that they have dealt
directly with and only with the Broker as a broker in connection with this
Lease.  Landlord and Tenant hereby
indemnify and hold each other harmless against any loss, claim, expense or
liability with respect to any commissions or brokerage fees claimed by any
broker or finder other than the Broker on account of the execution and/or
renewal of this Lease due to any action of the indemnifying party.  Landlord shall be responsible for any
commission or fee due to the Broker.


 


H.            If there
is more than one Tenant, or if Tenant as such is comprised of more than one
person or entity, the obligations hereunder imposed upon Tenant shall be joint
and several obligations of all such parties. 
All notices, payments, and agreements given or made by, with or to any
one of such persons or entities shall be deemed to have been given or made by,
with or to all of them.


 


I.              Tenant
acknowledges that the financial capability of Tenant to perform its obligations
hereunder is material to Landlord and that Landlord would not enter into this
Lease but for its belief, based on its review of Tenant’s financial statements,
that Tenant is 


 


27

















 


capable of performing such financial obligations.  Tenant hereby represents, warrants and
certifies to Landlord that its financial statements previously furnished to
Landlord were at the time given true and correct in all material respects and
that there have been no material subsequent changes thereto as of the date of
this Lease.


 


J.             Notwithstanding
anything to the contrary contained in this Lease, the expiration of the Lease
Term, whether by lapse of time or otherwise, shall not relieve Tenant from
Tenant’s obligations accruing prior to the expiration of the Lease Term, and
such obligations shall survive any such expiration or other termination of the
Lease Term.


 


K.            Landlord
and Tenant understand, agree and acknowledge that (i) this Lease has been
freely negotiated by both parties; and (ii) in any controversy, dispute or
contest over the meaning, interpretation, validity, or enforceability of this
Lease or any of its terms or conditions, there shall be no inference,
presumption, or conclusion drawn whatsoever against either party by virtue of
that party having drafted this Lease or any portion thereof.


 


L.             The
headings and titles to the paragraphs of this Lease are for convenience only
and shall have no affect upon the construction or interpretation of any part
hereof.  The term “including” shall be
deemed to mean “including without limitation”.


 


M.           The
additional provisions, if any, attached hereto as Exhibit E
are hereby incorporated by reference.


 


30.   No Offer.  Landlord has delivered a copy of this Lease to
Tenant for Tenant’s review only, and the delivery hereof does not constitute an
offer to Tenant or an option.  This Lease
shall not be effective until an original of this Lease is executed by both
Landlord and Tenant, and a signed original of this Lease is returned to Tenant.


 


31.   Entire Agreement.  This Lease, including the Exhibits attached
hereto, constitutes the entire agreement between the parties hereto with
respect to the subject matter of this Lease and supersedes all prior agreements
and understandings between the parties related to the Premises, including all
lease proposals, letters of intent and similar documents.  Tenant expressly acknowledges and agrees that
Landlord has not made and is not making, and Tenant, in executing and
delivering this Lease, is not relying upon, any warranties, representations,
promises or statements, except to the extent that the same are expressly set
forth in this Lease.  This Lease may be
modified only by a written agreement signed by Landlord and Tenant.  Landlord and Tenant expressly agree that
there are and shall be no implied warranties of merchantability, habitability,
suitability, fitness for a particular purpose or of any other kind arising out
of this Lease, all of which are hereby waived by Tenant, and that there are no
warranties which extend beyond those expressly set forth in this Lease.


 


32.   Limitation of Liability.  Any liability of
Landlord under this Lease shall be limited solely to its interest in the
Property and the rents derived therefrom, and in no event shall any personal
liability be asserted against Landlord, its members, or their respective
members, partners, shareholders, officers, directors, agents or employees, in
connection with this Lease nor shall any recourse be had to any other property
or assets of Landlord, its members, or their respective 


 


28

















 


members, partners, shareholders, officers, directors, agents or
employees.  Except as provided in Section 24
above, in no event shall Landlord or Tenant be liable to the other for
consequential or punitive damages as a result of a breach or default under or
otherwise in connection with this Lease. 
Notwithstanding the foregoing, in no event shall any damages or remedies
expressly provided for in this Lease be deemed consequential or punitive
damages.


 


[SIGNATURE
PAGE FOLLOWS]


 


29

















 


IN
WITNESS WHEREOF,
Landlord and Tenant have executed this Lease as of the day and year first above
written.


 


	
  WITNESS/ATTEST

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  TRANSWESTERN
  FEDERAL, L.L.C., a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Kathleen Zachary

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   Kathleen Zachary

  	
   

  	
  By:

  	
  Transwestern
  Investment

  
	
   

  	
  Title:

  	
   Administrative Associate

  	
   

  	
   

  	
  Company,
  L.L.C., its agent

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Joseph P. Concepcion

  
	
   

  	
   

  	
   

  	
  Name:

  	
   Joseph P. Concepcion

  
	
   

  	
   

  	
   

  	
  Title:

  	
   Managing Director

  
										



 


 


	
  WITNESS/ATTEST

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  ENERNOC, INC.,
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Jody McCoy

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jody McCoy

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive
  Assistant

  	
   

  	
  By:

  	
  /s/ Neal C.
  Isaacson

  
	
   

  	
   

  	
  Name:

  	
    Neal
  C. Isaacson

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial
  Officer

  
										



 


30

















 


EXHIBIT A-1


 


OUTLINE AND LOCATION OF
ORIGINAL PREMISES


 


[To Be Attached]


 


A-1

















 


EXHIBIT A-2


 


OUTLINE AND LOCATION OF
FIRST ADDITIONAL SPACE


 


[To Be Attached]


 


A-2

















 


EXHIBIT A-3


 


OUTLINE AND LOCATION OF
SECOND ADDITIONAL SPACE


 


[To Be Attached]


 


A-3

















 


EXHIBIT B


 


RULES AND REGULATIONS


 


The following rules and
regulations shall apply, where applicable, to the Premises, the Building, the
parking areas associated therewith (if any), the Property and the appurtenances
thereto:


 


1.             Sidewalks, entrances,
passageways, courts, corridors, vestibules, halls, elevators and stairways in
and about the Building shall not be obstructed nor shall objects be placed
against glass partitions, doors or windows which would be unsightly from the
Building’s corridors or from the exterior of the Building.


 


2.             Plumbing, fixtures
and appliances shall be used for only the purpose for which they were designed
and no foreign substance of any kind whatsoever shall be thrown or placed
therein.  Damage resulting to any such
fixtures or appliances from misuse by Tenant or its agents, employees or
invitees, shall be paid for by Tenant and Landlord shall not in any case be
responsible therefor, subject to the terms of the Lease.


 


3.             Any sign, lettering,
picture, notice or advertisement installed within the Premises which is visible
from the public corridors within the Building shall be installed in such
manner, and be of such character and style, as Landlord shall approve, in
writing in its reasonable discretion.  No
sign, lettering, picture, notice or advertisement shall be placed on any
outside window or door or in a position to be visible from outside the
Building.  No nails, hooks or screws
(except for customary artwork or wall hangings) shall be driven or inserted
into any part of the Premises or Building except by Building maintenance
personnel, nor shall any part of the Building be defaced or damaged by Tenant.


 


4.             Tenant shall not
place any additional lock or locks on any door in the Premises or Building
without Landlord’s prior written consent, which shall not be unreasonably
withheld.  Landlord acknowledges that
Tenant shall have the right to install a key card access system serving the
Premises, subject to the terms and conditions of Section 9B of the
Lease.  A reasonable number of keys to
the locks on the doors in the Premises shall be furnished by Landlord to Tenant
at the cost of Tenant, and Tenant shall not have any duplicate keys made.  All keys and passes shall be returned to
Landlord at the expiration or earlier termination of the Lease.


 


5.             Tenant shall refer
all contractors, contractors’ representatives and installation technicians to
Landlord for Landlord’s supervision, approval and control before the
performance of any contractual services, such approval not to be unreasonably
withheld.  This provision shall apply to
all work performed in the Building including, but not limited to installation
of telephones, telegraph equipment, electrical devices and attachments, doors,
entranceways, and any and all installations of every nature affecting floors,
walls, woodwork, window trim, ceilings, equipment and any other physical
portion of the Building. Tenant shall not waste electricity, water or air
conditioning.  All controls shall be
adjusted only by Building personnel.


 


6.             Movement in or out of
the Building of furniture or office equipment, or dispatch or receipt by Tenant
of any merchandise or materials which require the use of elevators, stairways,
lobby areas, or loading dock areas, shall be restricted to hours reasonably
designated 


 


B-1

















 


by Landlord.  Tenant must seek Landlord’s prior approval by
providing in writing a detailed listing of such activity.  If approved by Landlord, such activity shall
be under the supervision of Landlord and performed in the manner reasonably
stated by Landlord (requiring no material additional cost to Tenant).  Landlord may reasonably prohibit any article,
equipment or any other item from being brought into the Building.  Tenant is to assume all risk for damage to
articles moved and injury to persons resulting from such activity.  If any equipment, property and/or personnel
of Landlord or of any other tenant is damaged or injured as a result of or in
connection with such activity, Tenant shall be solely liable for any and all
damage or loss resulting therefrom, subject to the terms of the Lease.


 


7.             All corridor doors,
when not in use, shall remain closed. 
Tenant shall cause all doors to the Premises to be closed and securely
locked before leaving the Building at the end of the day.


 


8.             Tenant shall keep all
electrical and mechanical apparatus owned by Tenant free of vibration, noise
and airwaves which may be transmitted beyond the Premises.


 


9.             Canvassing,
soliciting and peddling in or about the Building or Property is
prohibited.  Tenant shall cooperate and
use its best efforts to prevent the same.


 


10.           Tenant shall not use
the Premises in any manner which would overload the standard heating,
ventilating or air conditioning systems of the Building.


 


11.           Tenant shall not
utilize any equipment or apparatus in such manner as to create any magnetic
fields or waves which adversely affect or interfere with the operation of any
systems or equipment in the Building or Property.


 


12.           Bicycles and other
vehicles are not permitted inside or on the walkways outside the Building,
except in those areas specifically designated by Landlord for such purposes.


 


13.           Tenant shall not
operate or permit to be operated on the Premises any coin or token operated
vending machine or similar device (including, without limitation, telephones,
lockers, toilets, scales, amusements devices and machines for sale of
beverages, foods, candy, cigarettes or other goods), except for those vending
machines or similar devices which are for the sole and exclusive use of Tenant’s
employees.


 


14.           Tenant shall not open
or permit to be opened any window in the Premises.  This provision shall not be construed as
limiting access of Tenant to any balcony adjoining the Premises.


 


15.           To the extent permitted
by law, Tenant shall not permit picketing or other union activity involving its
employees or agents in the Building or on the Property, except in those
locations and subject to time and other constraints as to which Landlord may
give its prior written consent, which consent may be withheld in Landlord’ sole
discretion.


 


16.           To the extent provided
in Section 3 of the Lease, Tenant shall comply with all applicable laws,
ordinances, governmental orders or regulations and applicable orders or
directions from any public office or body having jurisdiction, with respect to
the Premises and 


 


B-2

















 


Tenant’s
respective use or occupancy thereof. 
Tenant shall not make or permit any particular use of the Premises, the
Building or the Property, respectively, which is directly or indirectly
forbidden by law, ordinance, governmental regulation or order, or direction of
applicable public authority, or which may be dangerous to person or property.


 


17.           Tenant shall not use or
occupy the Premises in any manner or for any purpose which would injure the
reputation or impair the present or future value of the Premises, the Building
or the Property; without limiting the foregoing, Tenant shall not use or permit
the Premises or any portion thereof to be used for lodging, sleeping or for any
illegal purpose.


 


18.           All deliveries to or
from the Premises shall be made only at such reasonable times, in the areas and
through the entrances and exits reasonably designated for such purposes by
Landlord.  Tenant shall not permit the
process of receiving deliveries to or from the Premises outside of said areas
or in a manner which may interfere with the use by any other tenant of its
premises or any common areas, any pedestrian use of such area, or any use which
is inconsistent with good business practice.


 


19.           Tenant shall carry out
Tenant’s permitted repair, maintenance, alterations, and improvements in the
Premises only during times reasonably agreed to in advance by Landlord and in a
manner which will not unreasonably interfere with the rights of other tenants
in the Building.


 


20.           Landlord may from time
to time adopt appropriate systems and procedures for the security or safety of
the Building, its occupants, entry and use, or its contents.  Tenant, Tenant’s agents, employees,
contractors, guests and invitees shall comply with Landlord’s reasonable
requirements thereto.


 


21.           Landlord shall have the
right to prohibit the use of the name of the Building or any other publicity by
Tenant that in Landlord’s opinion may tend to impair the reputation of the
Building or its desirability for Landlord or its other tenants.  Upon written notice from Landlord, Tenant
will refrain from and/or discontinue such publicity immediately.


 


22.           Neither Tenant nor any
of its employees, agents, contractors, invitees or customers shall smoke in any
area designated by Landlord (whether through the posting of a “no smoking” sign
or otherwise) as a “no smoking” area.  In
no event shall Tenant or any of its employees, agents, contractors, invitees or
customers smoke in the hallways or bathrooms of the Building or at the
entrances to the Building.  Landlord
reserves the right to designate, from time to time, additional areas of the Building
and the Property as “no smoking” areas and to designate the entire Building and
the Property as a “no smoking” area.


 


[END OF
EXHIBIT B]


 


B-3
















 


EXHIBIT C


 


PAYMENT OF BASIC COSTS


 


A.    Prior
to January 1, 2010, Tenant shall have no obligation to pay to Landlord
Tenant’s Pro Rata Share of the amount by which Basic Costs (as defined below)
for any given calendar year exceeds Basic Costs for the Base Year, nor prior to
July 1, 2010 shall Tenant have any obligation to pay to Landlord Tenant’s
Pro Rata Share of the amounts by which Taxes (as defined below) for any given
Tax Fiscal Year exceeds Taxes for the Base Year.


 


B.    Commencing on January 1, 2010, Tenant
shall, during each calendar year, or portion thereof, falling within the Lease
Term, pay to Landlord as Additional Rent hereunder Tenant’s Pro Rata Share of
the amount by which Basic Costs for the applicable calendar year exceeds Basic
Costs for the Base Year.  Commencing on July 1,
2010, Tenant shall, during each Tax Fiscal Year, or portion thereof, falling
within the Lease Term, pay to Landlord as Additional Rent hereunder Tenant’s
Pro Rata Share of the amount by which Taxes for the applicable Tax Fiscal Year
exceeds Taxes for the Base Year.  In no
event shall Tenant’s Pro Rata Share of Basic Costs for any calendar year or
Tenant’s Pro Rata Share of Taxes for any Tax Fiscal Year be less than
zero.  Prior to January 1, 2010, or
as soon as practical thereafter, and prior to January 1 of each subsequent
calendar year during the Lease Term, or as soon as practical thereafter,
Landlord shall make a good faith estimate of (1) Basic Costs for the
applicable full or partial calendar year and Tenant’s Pro Rata Share thereof
and (2) Taxes for the applicable full or partial Tax Fiscal Year and
Tenant’s Pro Rata Share thereof. 
Commencing on January 1, 2010 with respect to Basic Costs and
commencing on July 1, 2010 with respect to Taxes, Tenant shall, on or
before the first day of each month during the Lease Term, pay Landlord, as
Additional Rent, a monthly installment equal to one-twelfth of Tenant’s Pro
Rata Share of (1) Landlord’s estimate of the amount by which Basic Costs
for the applicable calendar year will exceed Basic Costs for the Base Year, and
(2) Landlord’s estimate of the amount by which Taxes for the applicable
Tax Fiscal Year will exceed Taxes for the Base Year.  Landlord shall have the right from time to
time to reasonably revise the estimate of Basic Costs and Taxes and provide
Tenant with a revised statements therefor (provided, however, Landlord agrees
that Landlord shall not issue a revised statement more than twice in any
calendar year for Basic Costs and twice in any Tax Fiscal Year for Taxes), and
thereafter the amount Tenant shall pay each month shall be based upon such
revised estimate.  If Landlord does not
provide Tenant with an estimate of the Basic Costs and/or Taxes by January 1
of any calendar year, Tenant shall continue to pay a monthly installment based
on the previous year’s estimate until such time as Landlord provides Tenant
with an estimate of Basic Costs and/or Taxes for the current year.  Upon receipt of such current year’s estimate,
an adjustment shall be made for any month during the current year with respect
to which Tenant paid monthly installments of Additional Rent based on the
previous year’s estimate.  Tenant shall
pay Landlord for any underpayment within thirty (30) days after Landlord’s
written demand.  Any overpayment of
Additional Rent shall, at Landlord’s option, be refunded to Tenant or credited
against the installments of Additional Rent next coming due under the
Lease.  Any amount paid by Tenant based
on any estimate shall be subject to adjustment pursuant to Paragraph B below
when actual Basic Costs or actual Taxes, as applicable, are determined.


 


C-1

















 


C.    Commencing on January 1, 2010, Landlord
shall, as soon as is practical following the end of each calendar year during
the Lease Term, furnish to Tenant a statement of Landlord’s actual Basic Costs
and Taxes for the previous calendar year and Tax Fiscal Year.  If for any such calendar year (or, as
applicable, Tax Fiscal Year) the Additional Rent collected for the prior year,
as a result of Landlord’s estimate of Basic Costs or Taxes, is in excess of
Tenant’s Pro Rata Share of the amount by which Basic Costs or Taxes, as
applicable, for such prior year exceeds Basic Costs or Taxes for the Base Year,
then Landlord shall refund to Tenant any overpayment (or at Landlord’s option
apply such amount against Additional Rent due or to become due hereunder).  Likewise, Tenant shall pay to Landlord, on
demand, any underpayment with respect to the prior year whether or not the Lease
has terminated prior to receipt by Tenant of a statement for such underpayment,
it being understood that this clause shall survive the expiration of the Lease.


 


D.    “Basic Costs”
shall mean all reasonable direct and indirect costs, expenses paid and disbursements
of every kind (subject to the limitations set forth below), which Landlord
incurs, pays or becomes obligated to pay in each calendar year in connection
with operating, maintaining, repairing, owning and managing the Building and
the Property.  Basic Costs shall include,
without limitation, insurance premiums and deductibles, and the amortized cost
of capital improvements made to the Building or the Property which are (i) primarily
for the purpose of reducing operating expense costs or otherwise improving the
operating efficiency of the Property or Building; or (ii) required to
comply with any laws, rules or regulations of any governmental authority
or a requirement of Landlord’s insurance carrier enacted or first enforced
after the date of this Lease.  The cost
of such capital improvements shall be amortized over the useful life thereof,
as reasonably determined by Landlord in accordance with generally accepted
accounting principles consistently applied, and shall, at Landlord’s option,
include interest at a rate that is reasonably equivalent to the interest rate
that Landlord would be required to pay to finance the cost of the capital
improvement in question as of the date such capital improvement is performed.


 


E.     Basic Costs shall not include the following:  (i) costs of alterations of tenant
spaces (including all tenant improvements to such spaces); (ii) costs of
capital improvements, except as provided in Paragraph C above; (iii) depreciation,
interest and principal payments on mortgages, and other debt costs, if any; (iv) real
estate brokers’ leasing commissions or compensation and advertising and other
marketing expenses; (v) costs of HVAC system usage provided to, utilities
provided to, or services or work performed for the benefit of, another tenant
or occupant (other than for Common Areas) which is not provided to Tenant
without charge; (vi) legal, space planning, construction, and other
expenses incurred in procuring tenants for the Building or renewing or amending
leases with existing tenants or occupants of the Building; (vii) costs of
advertising and public relations and promotional costs and attorneys’ fees
associated with the leasing of the Building; (viii) any expense for which
Landlord actually receives reimbursement from insurance, condemnation awards,
other tenants, (other than through the payment of additional rent under such
tenants’ leases) or any other source; (ix) costs incurred in connection
with the sale, financing, refinancing, mortgaging, or other change of ownership
of the Building; (x) rental under any ground or underlying lease or
leases; (xi) Taxes; and (xii) electricity for any rentable space; (xiii)
management fees in excess of commercially reasonable management fees in effect
at comparable first class office buildings located in the financial district of
the City of Boston, Massachusetts; and (xiv) costs relating to any remediation
or disposal of hazardous materials which is not routine in nature, where such
hazardous materials are located in any 


 


C-2

















 


portion of the Building
leased to other tenants, or where such costs are in excess of customary costs
for the same at comparable first class office buildings located in the
financial district of the City of Boston, Massachusetts.


 


F.     “Taxes” shall
mean (i) all real estate taxes and assessments on the Property, the
Building or the Premises, and taxes and assessments levied in substitution or
supplementation in whole or in part of such taxes and the Property’s share of
any real estate taxes and assessments under any reciprocal easement agreement,
common area agreement or similar agreement as to the Property, (ii) all
personal property taxes for the Building’s personal property, including license
expenses, (iii) all taxes imposed on services of Landlord’s agents and
employees, (iv) all sales, use or other tax, excluding state and/or
federal income tax now or hereafter imposed by any governmental authority upon
rent received by Landlord not paid by Tenant, (v) all other taxes, fees or
assessments now or hereafter levied by any governmental authority on the
Property, the Building or its contents or on the operation and use thereof
(except as relate to specific tenants), and (vi) all reasonable costs and
fees incurred in connection with seeking reductions in or refunds in Taxes
including, without limitation, any costs incurred by Landlord to challenge the
tax valuation of the Building, but excluding income taxes and similar
taxes.  Estimates of real estate taxes
and assessments for any Tax Fiscal Year during the Lease Term shall be
determined based on Landlord’s good faith estimate of the real estate taxes and
assessments.  Taxes and assessments
hereunder are those accrued with respect to such Tax Fiscal Year, as opposed to
the real estate taxes and assessments paid or payable for such Tax Fiscal Year.


 


G.    If the Building and the other buildings
Landlord operates in conjunction therewith, if any, are not at least
ninety-five percent (95%) occupied, in the aggregate, during any calendar year
of the Lease Term or if Landlord is not supplying services to at least
ninety-five percent (95%) of the Rentable Area of the Building and such other
buildings, if any, at any time during any calendar year of the Lease Term,
actual Basic Costs for purposes hereof shall be determined as if the Building
and such other buildings had been ninety-five percent (95%) occupied and
Landlord had been supplying services to ninety-five percent (95%) of the
Rentable Area of the Building and such other buildings during such year.  Basic Costs for the Base Year shall also be
determined as if the Building and such other buildings, if any, had been
ninety-five percent (95%) occupied and Landlord had been supplying services to
ninety-five percent (95%) of the Rentable Area of the Building and such other
buildings.


 


H.    Tenant shall have the right to inspect, at
reasonable times and in a reasonable manner, during the sixty (60) day period
following the delivery of Landlord’s statement of the actual amount of Basic
Costs, such of Landlord’s books of account and records as pertain to and
contain information concerning such costs and expenses in order to verify the
amounts thereof.  Tenant agrees that any
information obtained during an inspection by Tenant of Landlord’s books of account
and records shall be kept in confidence by Tenant and its agents and employees
and shall not be disclosed to any other parties, except to Tenant’s attorneys,
accountants and other consultants and as required by law.  Any parties retained by Tenant to inspect
Landlord’s books of account and records shall not be compensated on a
contingency fee basis.  If Tenant shall
not dispute any item or items included in the determination of Basic Costs for
a particular calendar year by delivering a written notice to Landlord generally
describing in reasonable detail the basis of such dispute within one hundred
twenty (120) days after the statement for such year was 


 


C-3

















 


delivered to it, Tenant
shall be deemed to have approved such statement.  During the pendency of any dispute over Basic
Costs, Tenant shall pay, under protest and without prejudice, Tenant’s Pro Rata
Share of Basic Costs as calculated by Landlord.


 


I.              Basic Costs that are incurred jointly for the benefit
of the Building and one or more other buildings or properties, whether pursuant
to a reciprocal easement agreement, common area agreement or otherwise, shall
be allocated between the Building and the other buildings or properties in
accordance with the ratio of their respective rentable areas calculated using a
consistent methodology, unless the other buildings or properties are used for a
purpose materially different than the Building, in which case the affected cost
items may be allocated on a reasonable basis. 
Basic Costs incurred for the benefit of less than all of the tenants at
the Property or in the Building may be allocated among such tenants based on
the rentable square footage of their respective premises.


 


[END OF
EXHIBIT C]


 


C-4

















 


EXHIBIT D


 


WORK LETTER


 


1.                                       Landlord
shall, at its sole cost and expense, perform improvements to the First
Additional Space and Common Areas in accordance with the worklist attached
hereto as Attachment #1 (the “Worklist”), so
long as no default by Tenant shall occur and be continuing under the
Lease.  The improvements to be performed
by Landlord in accordance with the Worklist are hereinafter referred to as “Landlord’s Work”. 
Landlord shall not commence Landlord’s Work until Tenant instructs
Landlord to do so in writing (provided, however, that the performance of any
portion of Landlord’s Work prior to receipt of such instructions shall not be
deemed a default under this Lease and Tenant’s sole remedy therefor shall be that
any costs and expenses incurred by Landlord prior to receipt of such
instructions shall not be included in the Early Termination Payment
(hereinafter defined)) and Landlord shall substantially complete Landlord’s
Work within sixty (60) days after receiving such written instructions (the “Landlord’s Work Outside Completion Date”).  Notwithstanding the foregoing, if Landlord
shall be delayed in completing Landlord’s Work as a result of any act or
omission by Tenant, its employees or contractors, then the Landlord’s Work
Outside Completion Date shall be postponed by a period of time equal to the
delay caused by such act or omission.


 


2.                                       Subject
to the terms and provisions of Section 2C of this Lease, Tenant shall have
the right to perform certain alterations and improvements in the Original
Premises and the First Additional Space (collectively, the “First Additional Space  Initial Alterations”).  Subject to the terms and provisions of Section 2C
of this Lease, and provided that Tenant has delivered evidence reasonably
satisfactory to Landlord that Amdocs has consented to such alterations and
improvements, Tenant shall also have the right to perform certain alterations
and improvements in the Second Additional Space (collectively, the “Second Additional Space  Initial Alterations,”
and together with the First Additional Space Initial Alterations, the “Initial Alterations”). 
Notwithstanding the foregoing, Tenant and its contractors shall not have
the right to perform Initial Alterations in the Premises unless and until
Tenant has complied with all of the terms and conditions of Section 9B of
the Lease, including, without limitation, approval by Landlord of (a) the
final plans for the Initial Alterations, (b) the contractors to be
retained by Tenant to perform such Initial Alterations (Landlord hereby
acknowledging that it has approved of Structure Tone, Inc. as Tenant’s
general contractor), and (c) the insurance coverage obtained by Tenant and
its contractors in connection with the Initial Alterations.  Tenant shall be responsible for all elements
of the plans for the Initial Alterations (including, without limitation,
compliance with law, functionality of design, the structural integrity of the
design, the configuration of the premises and the placement of Tenant’s
furniture, appliances and equipment), and Landlord’s approval of such plans
shall in no event relieve Tenant of the responsibility therefor.  Landlord’s approval of the contractors to
perform the Initial Alterations shall not be unreasonably withheld. Landlord’s
approval of the general contractor to perform the Initial Alterations shall not
be considered to be unreasonably withheld if any such general contractor (i) does
not have trade references reasonably acceptable to Landlord, (ii) does not
maintain insurance as reasonably required by Landlord, (iii) does not have
the ability to be bonded for the work in an amount satisfactory to Landlord, (iv) does
not 


 


D-1

















 


provide current
financial statements reasonably acceptable to Landlord, or (v) is not
licensed as a contractor in the state and municipality in which the Premises is
located.  Tenant acknowledges the
foregoing is not intended to be an exclusive list of the reasons why Landlord
may reasonably withhold its consent to a general contractor.


 


3.                                       Promptly
after obtaining Landlord’s approval of the plans for the Initial Alterations
and before commencing construction of the Initial Alterations, Tenant shall
deliver to Landlord a reasonably detailed estimate of the cost of the Initial
Alterations, which estimate shall include, if applicable, the cost of
purchasing and installing the Emergency Generator (the “Cost
Estimate”).  Tenant shall pay
to Landlord, within ten (10) days after Landlord’s written demand, a
construction management fee equal to the lesser of one percent (1%) of the cost
of the Initial Alterations and the Construction Allowance (hereinafter defined)
to compensate Landlord for reviewing the plans for the Initial Alterations and
for costs incurred by Landlord in facilitating completion of the Initial
Alterations.  Landlord reserves the right
to deduct such fee from the Construction Allowance.


 


4.                                       Landlord
agrees to contribute up to One Million Three Hundred Forty-Six Thousand Six
Hundred Ten Dollars ($1,346,610) (the “Construction Allowance”)
toward the cost of performing the Initial Alterations.  The Construction Allowance may only be used
for the cost of preparing design and construction documents and mechanical and
electrical plans for the Initial Alterations (to the extent not paid for out of
the Preliminary Design Allowance (hereinafter defined)), for architectural
supervision, for hard costs in connection with the Initial Alterations, and for
costs in connection with Tenant’s purchase and installation of the Emergency
Generator pursuant to Exhibit E
of this Lease.  The Construction
Allowance, less a 10% retainage (which retainage shall be payable as part of
the final draw), shall be paid to Tenant or, if any default for which Tenant
has received notice is then continuing, at Landlord’s option, to the order of
the general contractor that performs the Initial Alterations, in periodic
disbursements within thirty (30) days after receipt of the following
documentation: (i) an application for payment and sworn statement of
contractor substantially in the form of AIA Document G-702 covering all work
for which disbursement is to be made to a date specified therein; (ii) a
certification from an AIA architect substantially in the form of the Architect’s
Certificate for Payment which is located on AIA Document G702, Application and
Certificate of Payment; (iii) contractor’s, subcontractor’s and material
supplier’s partial waivers of liens which shall cover all Initial Alterations
for which disbursement has previously been made and all other statements and
forms required for compliance with the mechanics’ lien laws of the state in
which the Premises is located, together with all such invoices, contracts, or
other supporting data as Landlord or Landlord’s mortgagee may reasonably
require; (iv) a cost breakdown for each trade or subcontractor performing
the Initial Alterations; (v) plans and specifications for the Initial
Alterations, together with a certificate from an AIA architect that such plans
and specifications comply in all material respects with all laws affecting the
Building, Property and Premises; (vi) copies of all construction contracts
for the Initial Alterations, together with copies of all change orders, if any;
and (vii) a request to disburse from Tenant containing an approval by
Tenant of the work done and a good faith estimate of the cost to complete the
Initial Alterations.  Notwithstanding
anything herein to the contrary, if the 


 


D-2

















 


Cost Estimate
provided by Tenant prior to commencing construction of the Initial Alterations
exceeds the Construction Allowance (such excess referred to herein as the “Excess Cost”), then except with respect to the final
disbursement, Landlord shall deduct from each disbursement made pursuant to the
preceding sentence (and shall have no obligation to advance the Construction
Allowance with respect to) an amount equal to (a) the cost of the Initial
Alterations for which such disbursement is being requested, multiplied by (b) a
fraction, the numerator of which shall be the Excess Cost and the denominator
of which shall be the Cost Estimate.  Any
such deduction shall be made prior to calculating the retainage Landlord shall
deduct from such disbursement.  Upon
completion of the Initial Alterations, and as a condition of Landlord making
the final disbursement of the Construction Allowance, Tenant shall furnish
Landlord with:  (1) general
contractor and architect’s completion affidavits, (2) full and final
waivers of lien, (3) receipted bills covering all labor and materials
expended and used, (4) as-built plans of the Initial Alterations, (5) the
certification of Tenant and its architect that the Initial Alterations have
been installed in a good and workmanlike manner in accordance with the approved
plans, and in accordance with applicable laws, codes and ordinances, (6) a
temporary or permanent certificate of occupancy or equivalent sign-off from the
applicable municipal authority entitling Tenant to occupy the Premises, and (7) an
estoppel certificate in a form reasonably satisfactory to Landlord and signed
by Tenant acknowledging that the Construction Allowance shall be paid in full
and the Guaranty (or any substitute guaranty provided to Tenant under Section 25
of the Lease) will be terminated and of no further force or effect effective
upon the payment of such final disbursement. 
Tenant shall deliver to Landlord a permanent certificate of occupancy
entitling Tenant to occupy the Premises within six (6) months after completion
of the Initial Alterations; provided, however, that such six (6) month
period shall be extended on a
day-for-day basis if Tenant is unable to obtain a permanent certificate of
occupancy due to the failure of Landlord to perform any of its obligations
under this Lease.  In no event
shall Landlord be required to disburse the Construction Allowance more than one
time per month.  Notwithstanding anything
herein to the contrary, Landlord shall not be obligated to disburse any portion
of the Construction Allowance during the continuance of an uncured Event of
Default under the Lease, and Landlord’s obligation to disburse shall only
resume when and if such Event of Default is cured and waived by Landlord in
writing.


 


In
addition, Landlord agrees to contribute up to Five Thousand Seven Hundred Three
Dollars ($5,703) (the “Preliminary Design
Allowance”) towards Tenant’s third-party, out of pocket costs
incurred in the preparation of the plans and specifications for the Initial
Alterations.  To the extent that Tenant
incurs costs with respect to such plans and specifications in excess of the
Preliminary Design Allowance, said costs may, at Tenant’s option, be reimbursed
as part of the Construction Allowance. 
The Preliminary Design Allowance shall be paid to Tenant within thirty
(30) days following receipt by Landlord of all invoices covering the
preparation of the plans and specifications for the Initial Alterations.


 


5.                                       In
no event shall the Construction Allowance or Preliminary Design Allowance be
used for the purchase of furniture or other items of personal property of
Tenant (other than the Emergency Generator). 
In the event Tenant does not submit to Landlord a written request for
payment of the entire Construction Allowance (together with all of the 


 


D-3

















 


documents and
certificates required for such payment) within twenty-four (24) months after
the Second Additional Space Commencement Date, any portion of the Construction
Allowance not disbursed to Tenant shall accrue to the sole benefit of Landlord,
it being understood that Tenant shall not be entitled to any credit, abatement
or other concession in connection therewith. 
Tenant shall be responsible for all applicable state sales or use taxes,
if any, payable in connection with the Initial Alterations and/or Construction
Allowance.


 


6.                                       Without
limiting Landlord’s obligations under this Lease, and subject to Landlord’s
obligations below with respect to the Third Floor Connector (hereinafter
defined), Tenant agrees to accept the Premises in its “as-is” condition and
configuration, without representation or warranty by Landlord or anyone acting
on Landlord’s behalf, it being agreed that, except as provided herein with
respect to Landlord’s Work and the Construction Allowance, Landlord shall not
be required to perform any work or incur any costs in connection with the
construction or demolition of any improvements in the Premises.


 


7.                                       Subject
to Tenant constructing the Third Floor Connector upon the same terms and conditions
as those set forth herein with respect to other Initial Alterations (e.g.,
Landlord’s approval of the plans therefor) and Tenant obtaining all permits,
variances, consents and other approvals necessary for the construction,
operation and use of the Third Floor Connector from all municipal and other
applicable governmental authorities (collectively, the “Required
Connector Approvals”), Landlord hereby approves of the construction
of a corridor connecting the elevator lobby located on the third (3rd) floor of
the 75 Federal Street Building and the elevator lobby located on the third
(3rd) floor of the 101 Federal Street Building (the “Third Floor
Connector”) as part of the Initial Alterations and of its operation
and use by Tenant.  Landlord hereby acknowledges
its receipt and approval of the plans and specifications for the Third Floor
Connector prepared by Tenant prior to the execution of this Lease.  Landlord shall cooperate with Tenant
reasonably and in good faith, but at Tenant’s sole cost and expense, as the
owner of the Building in connection with (i) Tenant’s construction of the
Third Floor Connector, and (ii) Tenant’s obtaining the Required Connector
Approvals.  In the event that the Third
Floor Connector is constructed in accordance with this paragraph, then
effective as of the date construction of the Third Floor Connector is complete,
the Third Floor Connector shall be included in the Common Areas of the
Building.  Notwithstanding anything in
this Lease to the contrary, in the event that the construction, operation or
use of the Third Floor Connector by Tenant shall cause any damage to the
Building, either in connection with its construction or at any time thereafter
during the Lease Term, the cost of repairing such damage shall be the sole responsibility
of Tenant; provided, however, that so long as Tenant completes the construction
of the Third Floor Connector in accordance with the plans therefor approved by
Landlord, the modifications to the third floor of the Building necessary in
connection with such construction shall not be considered damage to the
Building for the purposes of this sentence. 
As soon as Tenant has completed construction of the Third Floor
Connector and the Third Floor Connector has become part of the Common Areas of
the Building pursuant to this paragraph, Tenant shall (i) deliver to
Landlord copies of all plans and other documents in Tenant’s 


 


D-4

















 


possession related
to the Third Floor Connector, and (ii) assign to Landlord all warranties
related to the Third Floor Connector.


 


8.                                       This
Work Letter shall not be deemed applicable to any additional space added to the
original Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the original Premises or any
additions to the Premises in the event of a renewal or extension of the
original Lease Term, whether by any options under the Lease or otherwise,
unless expressly so provided in the Lease or any amendment or supplement to the
Lease.  All capitalized terms used in
this Work Letter but not defined herein shall have the same meanings ascribed
to such terms in the Lease.


 


[END OF
EXHIBIT D]


 


D-5

















 


ATTACHMENT
#1


 


WORKLIST


 


1.               Landlord
to perform routine maintenance of HVAC system, replace filters and verify
system is in good working order. 
Landlord to perform routine maintenance on all other base building
systems serving the First Additional Space and verify that such systems are in
good working order.


 


2.               Landlord
to complete installation of Island Air wall-mounted heat pump system located in
the southwest corner of the First Additional Space, including installation of
any missing heat pump units and/or piping required to connect the system to
building systems.


 


3.               Landlord
to replace all missing controls for the HVAC system.


 


4.               Landlord
to ensure that all existing exterior heat pumps are in good working order,
including making any necessary repairs or replacements.


 


5.               If,
in the reasonable judgment of Tenant’s architect, it is found necessary in
connection with the construction of the Initial Alterations, Landlord will
relocate and, as necessary, upgrade the following electric panelboards:


 


(a)          One (1) panelboard
rated at 208Y/120 volt - 3 phase - 4 wire located to the right of the entrance
within the interior of the electric room above the existing 75 KVA transformer;


 


(b)         One (1) panelboard
rated at 208Y/120 volt - 3 phase - 4 wire located to the left of the entrance
within the interior of the electric room (the first 208Y/120 volt - 3 phase - 4
wire panelboard on the entrance wall); and


 


(c)          One (1) panelboard
rated at 208Y/120 volt - 3 phase - 4 wire located to the left of the entrance
within the interior of the electric room (the second 208Y/120 volt - 3 phase -
4 wire panelboard on the entrance wall).


 


6.               Landlord
to replace existing light fixtures in perimeter offices with Metalux 2HPT8
Luminaire Lamps.


 


D-6
















 


EXHIBIT E


 


ADDITIONAL PROVISIONS


 


33.           Extension Option.


 


A.            Landlord
hereby grants to Tenant an option to extend the Lease Term for one (1) period
of five (5) years (the “Extension Period”).  The Extension Period shall commence on the
day following the expiration of the initial Lease Term (“Extension
Commencement Date”) and shall expire on the day preceding the fifth
(5th) anniversary of the Extension Commencement Date, unless sooner terminated
in accordance with the terms and provisions of the Lease.


 


B.            The Extension Period shall be upon
the same terms, covenants, and conditions as set forth in the Lease with
respect to the initial Lease Term, except that Base Rent payable during the
Extension Period shall be equal to the Fair Market Rental Rate (as defined
below) for lease terms commencing on or about the Extension Commencement Date,
as determined in accordance with this Section. 
Tenant shall be obligated to pay Tenant’s Pro Rata Share of Basic Costs
and Taxes during the Extension Period, if Tenant has elected to extend the
Lease Term.


 


C.            If Tenant desires to exercise its
option to extend, Tenant shall no earlier than fifteen (15) months prior to the
expiration of the initial Lease Term, and no later than twelve (12) months
prior to the expiration of the initial Lease Term, time being of the essence,
notify Landlord in writing of its desire to extend and request of Landlord its
determination of the Fair Market Rental Rate (“Tenant’s
Initial Notice”).  Landlord
shall, within thirty (30) days of its receipt of Tenant’s Initial Notice,
notify Tenant in writing (“Landlord’s Notice”)
of the rental rate for the Extension Period (the “Extension
Period Rental Rate”).  If
Tenant desires to extend the Lease Term for the Extension Period at the
Extension Period Rental Rate, Tenant shall so notify Landlord in writing (the “Extension Notice”) within thirty (30) days after Landlord
delivers Landlord’s Notice to Tenant.  If
Tenant does not so exercise the Extension Option, then Tenant may notify
Landlord in writing (the “Negotiation Notice”)
within thirty (30) days after Landlord delivers Landlord’s Notice to Tenant
that Tenant disagrees with Landlord’s determination of the Fair Market Rental
Rate, in which case Tenant shall concurrently notify Landlord of Tenant’s
determination of the Fair Market Rental Rate, and if the parties are unable to
agree upon a Fair Market Rental Rate within thirty (30) days after such
response by Tenant (the “Negotiation Period”),
then such dispute shall be settled by binding arbitration as hereinafter
described.  If Tenant fails to deliver
either the Extension Notice or Negotiation Notice within the time periods
specified above, the Extension Option shall be deemed waived, time being of the
essence.


 


D.            Landlord
and Tenant, within fifteen (15) days after expiration of a Negotiation Period,
shall each simultaneously submit to the other, in a sealed envelope, its good
faith estimate of the Fair Market Rental Rate for the Extension Period
(collectively referred to as the “Estimates”). If
the higher of such Estimates is not more than one 


 


E-1

















 


hundred two percent (102%) of the lower of such Estimates, then the Fair
Market Rental Rate shall be the average of the two Estimates. If the Fair
Market Rental Rate is not so resolved pursuant to the preceding sentence,
Landlord and Tenant, within fifteen (15) days after the exchange of Estimates,
shall each select an appraiser to determine which of the two Estimates more
closely reflects the Fair Market Rental Rate for the Premises for the Extension
Period.  Each appraiser selected pursuant
to this Section shall be certified as an MAI appraiser and shall have had
at least ten (10) years experience as a real estate appraiser of which at
least the last five (5) years immediately preceding the Negotiation Period
must be as a real estate appraiser working in the downtown Boston,
Massachusetts office market, with working knowledge of current rental rates and
market practices. For purposes of this Section, “MAI appraiser”
means an individual who holds an MAI designation conferred by, and is an
independent member of, the American Appraisal Institute (or its successor
organization, or in the event there is no successor organization, the
organization and designation most similar) and who is not affiliated with
Landlord or Tenant. Upon selection, Landlord’s and Tenant’s appraisers shall
work together in good faith to agree upon which of the two Estimates more
closely reflects the Fair Market Rental Rate for the Premises for the Extension
Period.  The Estimate chosen by such
appraisers shall be binding on both Landlord and Tenant as the Base Rent rate
for the Extension Period.  If either
Landlord or Tenant fails to appoint an appraiser within the fifteen (15) day
period referred to above, then the appraiser appointed by the other party shall
be the sole appraiser for the purposes hereof. If the two appraisers cannot
agree upon which of the two Estimates most closely reflects the Fair Market
Rental Rate within twenty (20) days after their appointment; then, within ten (10) days
after the expiration of such twenty (20) day period, the two (2) appraisers
shall select a third appraiser meeting the aforementioned criteria (or, if such
two appraisers are unable to select a third appraiser, such selection shall be
made by the President of the local chapter of the American Appraisal Institute
(or its successor organization)). Once the third appraiser has been selected as
provided for above, then, as soon thereafter as practicable, but in any case
within fourteen (14) days, the third appraiser shall make its determination of
which of the two Estimates more closely reflects the Fair Market Rental Rate
for the Premises for the Extension Period and such appraiser shall not select
anything other than one of the two Estimates from Landlord and Tenant and the
Estimate so selected by the third appraiser shall be binding on both Landlord
and Tenant as the Fair Market Rental Rate for the Premises for the Extension
Period.  The party whose Estimate is not
selected as the Fair Market Rental Rate shall pay the costs of the third
appraiser and of any experts retained by the third appraiser. Any fees of any
appraiser, counsel or experts engaged directly by Landlord or Tenant, however,
shall be borne by the party retaining such appraiser, counsel or expert.  Unless Landlord, in its sole and absolute
discretion, otherwise agrees in writing, Tenant may only exercise its option to
extend and an exercise thereof shall only be effective, if at the time of Tenant’s
exercise of the option and on the Extension Commencement Date, the Lease is in
full force and effect and no uncured Event of Default by Tenant under the Lease
shall then exist.


 


E.             Unless
Landlord, in its sole and absolute discretion, otherwise agrees in writing,
Tenant may only exercise its option to extend and an exercise thereof shall
only be effective, if at the time of Tenant’s exercise of the option and on the
Extension Commencement Date, the Lease is in full force and effect and no
uncured Event of Default 


 


E-2

















 


by Tenant under the Lease shall then exist, and Tenant has not assigned
the Lease or sublet more than fifty percent (50%) of the rentable square
footage of the Premises other than pursuant to a Permitted Transfer.


 


F.             Upon
the valid exercise by Tenant of the option to extend, Landlord and Tenant shall
promptly enter into a written supplement to the Lease confirming the terms,
conditions and provisions applicable to the Extension Period, as determined in
accordance with the provisions of this Section. 
Upon the exercise by Tenant of the option to extend, the Termination
Option (hereinafter defined) shall be null and void and of no further force or
effect.


 


G.            For
purposes of the Lease, the term “Fair Market Rental Rate”
shall mean a rate comprised of (i) the prevailing base rental rate per
square foot of rentable area available in the Pertinent Market (as defined
below), and taking into account tenant improvement allowances, other tenant
inducements, operating cost stops and tax cost stops, and brokerage
commissions, and (ii) any escalation of any such base rental rate (based
upon a fixed step and/or index) prevailing in the Pertinent Market, taking into
account (A) comparable leases (on the basis of factors such as, but not
limited to, size and location of space and commencement date and term of
lease), if any, recently executed for improved space in the Building, and (B) leases
for comparable (on the basis of factors such as, but not limited to, size and
location of space and commencement date and term of lease) improved space in
comparable office buildings in the downtown Boston, Massachusetts area which
are comparable to the Building in reputation, quality, age, size, location and
level and quality of services provided and which have reached economic
stabilization and are not, for any other reason, offering below market rents
(the foregoing factors not being exclusive in identifying comparable buildings)
(the Building, together with such comparable buildings, if applicable, being
herein referred to as the “Pertinent  Market”).


 


34.           Right of First Offer.


 


A.            Landlord
hereby grants to Tenant the on-going option to lease, upon the terms and
conditions hereinafter set forth, but subject to the existing rights of any
current tenants of the Building and subject to Landlord’s right to renew or
extend the term of the lease of the then-current tenant or occupant of the
Offer Space (hereinafter defined), such portions of the Building which are
shown on Attachment #1 hereto (collectively, the
“Offer Space”) which become available
for leasing (as determined in accordance with this Section 34) during the
Lease Term, prior to entering into a lease for such space with another party.


 


B.            A
portion of the Offer Space shall be deemed to be “available
for leasing” when Landlord is prepared to offer to lease such space
to parties other than to the then-current tenant or occupant of such Offer
Space and other than current tenants of the Building with existing rights as of
the date of this Lease to lease such Offer Space.


 


C.            Prior
to Landlord’s entering into a lease for any portion of the Offer Space which is
available for leasing during the Lease Term, Landlord shall give Tenant a
written 


 


E-3

















 


notice (the “Offer Notice”)
setting forth (i) the location, (ii) the rentable area, (iii) the
rental rate; (iv) all other material economic terms; and (v) the
availability date (the “Offer Space Commencement
Date”).


 


D.            Tenant’s right to
lease such portion of the Offer Space shall be exercisable by written notice
(the “Acceptance Notice”) from Tenant to
Landlord delivered not later than twenty (20) days after the Offer Notice is
delivered to Tenant, time being of the essence. 
Tenant may not elect to lease less than the entire portion of Offer
Space described in an Offer Notice.  If
Tenant does not exercise such right to lease such portion of the Offer Space,
then Landlord shall have the right thereafter to lease such space to another prospective
tenant without offering such space to Tenant. 
Notwithstanding the foregoing, in the event that (i) Landlord has
not entered into a binding or non-binding agreement to lease any portion of the
Offer Space to another prospective tenant within nine (9) months after
Tenant’s failure to deliver an Acceptance Notice with respect to such space, or
(ii) Tenant fails to deliver an Acceptance Notice with respect to any
portion of the Offer Space within such 20-day period, and thereafter, Landlord
intends to enter into a lease with respect to such portion of Offer Space with
an effective rent (after taking into account any free rent, tenant improvement
allowances, or other concessions) more than ten percent (10%) less than that
specified in the Offer Notice (measured in each case in terms of a net present
value of the total economic consideration for the transaction using an eight
percent (8%) discount rate), then such portion of the Offer Space shall once
again become subject to the provisions of this Section 34.


 


E.             Tenant’s right to
lease Offer Space is subject to the following additional terms and conditions:


 


(i)            The
Lease must be in full force and effect on the date on which Tenant provides its
Acceptance Notice to Landlord to lease Offer Space and on the applicable Offer
Space Commencement Date.


 


(ii)           There
must not be a continuing Event of Default under the Lease, either on the date
Tenant provides its Acceptance Notice to Landlord to lease Offer Space or on
the applicable Offer Space Commencement Date, unless Landlord, in its sole and
absolute discretion, agrees in writing to permit Tenant to lease such Offer
Space notwithstanding such Event of Default; and


 


(iii)          Tenant
shall not have assigned the Lease and shall not have sublet more than thirty
percent (30%) of the rentable square footage of the Premises other than
pursuant to a Permitted Transfer.


 


F.             If Tenant provides its
Acceptance Notice to Landlord to lease a portion of the Offer Space, then
effective as of the applicable Offer Space Commencement Date, such portion of
the Offer Space shall be included in the Premises, subject to all of the terms,
conditions and provisions of this Lease except that:


 


E-4

















 


(i)            Base
Rent per square foot of rentable area for such portion of the Offer Space shall
be equal to the Fair Market Rental Rate for leases of comparable space
commencing on or about the Offer Space Commencement Date, as reasonably
determined by Landlord;


 


(ii)           The
Rentable Area in the Premises shall be increased by the number of square feet
of rentable area in such portion of the Offer Space and such Rentable Area in
the Premises, as so increased, shall be used in calculating the increases in
Tenant’s Pro Rata Share;


 


(iii)          The
Lease Term with respect to the Offer Space shall commence on the applicable
Offer Space Commencement Date and shall expire simultaneously with the
expiration or earlier termination of the Lease Term, including any extension or
renewal thereof; and


 


(iv)          The
Offer Space shall be rented in its “as is” condition as of the Offer Space
Commencement Date, without representation or warranty by Landlord or any other
party acting on behalf of Landlord.


 


G.            If Landlord fails to
deliver possession on the applicable Offer Space Commencement Date of the
portion of the Offer Space which Tenant has exercised its option to lease
because of any act or occurrence beyond the reasonable control of Landlord,
including, without limitation, the holding over of any tenants or occupants
beyond the expiration of their lease terms or other causes of such nature, then
Landlord shall not be subject to any liability for failure to deliver
possession, and such failure to deliver possession shall not affect either the
validity of the Lease or the obligations of either Landlord or Tenant
thereunder or be construed to extend the expiration of the Lease Term either as
to such portion of the Offer Space or the balance of the Premises; provided,
however, that under such circumstances, (i) Landlord shall make diligent
efforts to obtain possession of such portion of the Offer Space and (ii) Rent
shall not commence as to such portion of the Offer Space until Landlord is able
to deliver possession thereof to Tenant.


 


H.            Upon the valid
exercise by Tenant of its option to lease Offer Space, Landlord and Tenant
shall promptly enter into a written supplement to the Lease reflecting the
terms, conditions and provisions applicable to such portion of the Offer Space,
as determined in accordance herewith.


 


I.              In the event any portion
of the Offer Space is leased to Tenant other than pursuant to the right of
first offer described herein, such portion of the Offer Space shall thereupon
be deleted from the Offer Space.


 


35.           Option To Terminate. 
Provided that an Event of Default has not occurred and is then
continuing under this Lease, Tenant has not delivered the Extension Notice and
has not delivered the Acceptance Notice (i.e., has not exercised a renewal
option or expansion option), Tenant shall have a one (1) time option to
terminate this Lease (the “Termination Option”),
effective on any date on or after June 30, 2013 (such date being referred
to herein as the “Early 


 


E-5

















 


Termination Date”) as designed in the Termination Notice (hereinafter
defined).  Tenant shall exercise the
Termination Option by (i) delivering to Landlord written notice (the “Termination Notice”) of such election to terminate the Lease
no earlier than May 31, 2012 and no later than June 30, 2012, and (ii) paying
to Landlord fifty percent (50%) of the Termination Payment (hereinafter
defined) concurrently with the Termination Notice and paying fifty percent
(50%) of the Termination Payment prior to the Early Termination Date.  If Tenant properly delivers the Termination
Notice and makes the Termination Payment in a timely manner, then the Lease
shall be deemed to have expired by lapse of time on the Early Termination
Date.  Tenant shall return the Premises
to Landlord on the Early Termination Date in accordance with the terms of the
Lease, including, but not limited to, Section 27.  If Tenant fails to make the Termination
Payment in a timely manner, the Termination Option shall, at Landlord’s option,
be void.  Unless Landlord otherwise
agrees in writing, Tenant may not exercise the Termination Option, and no
exercise thereof shall be effective, if an Event of Default shall exist under
the Lease as of the date on which the Termination Notice is given or as of the
Early Termination Date.  Upon Tenant’s
delivering the Termination Notice, any and all rights of Tenant to extend the
Lease Term or to lease additional space in the Building, whether pursuant to a
right of first offer, a right of first refusal, an expansion option, or
otherwise, shall immediately be void and of no further force or effect.  All obligations of either party to the other
which accrue under the Lease on or before the Early Termination Date shall
survive such termination.  As used
herein, “Termination Payment” shall mean the sum
of (1) the unamortized balance of the Leasing Costs (hereinafter defined)
as of the Early Termination Date had the Leasing Costs been loaned to Tenant as
of the Commencement Date at the interest rate of nine percent (9%) per annum
and had such loaned amount been repaid in equal monthly installments commencing
on the Commencement Date in amounts sufficient to fully amortize such loaned
amount and the imputed interest thereon on the Expiration Date and (2) an
amount equal to three (3) multiplied by the sum of Base Rent and Additional
Rent due under the Lease for the full calendar month immediately preceding the
Early Termination Date.  The term “Leasing Costs” shall mean the sum of (i) $544,868
(representing the total brokerage commission payable by Landlord in connection
with the Lease), (ii) $36,134 (representing the total legal fees payable
by Landlord in connection with the negotiation and execution of the Lease), and
(iii) $1,352,313 (representing the maximum Construction Allowance and
Preliminary Design Allowance payable by Landlord pursuant to the Work Letter
attached to the Lease as Exhibit D)
but only to the extent actually disbursed by Landlord to Tenant.  Landlord and Tenant acknowledge that the
Termination Payment is not a penalty, but is a reasonable estimate of the damages
to be suffered by Landlord as a consequence of Tenant’s exercise of the
Termination Option.  Tenant hereby
acknowledges and agrees that Tenant shall not be entitled to any rebate or
return of any portion of the Termination Payment as a consequence of the actual
costs incurred by Landlord in re-letting the Premises being less than the
Termination Payment.


 


36.           Emergency Generator. 
Landlord hereby approves the construction, installation, operation,
maintenance and use of any or all (as determined by Tenant) of (1) one
diesel back-up emergency generator and (2) one uninterrupted power source
system and (3) one fuel storage tank and pipes and connections thereto
((1), (2) and (3) collectively, the “Emergency
Generator”), all in accordance with specifications reasonably
approved by Landlord, and hereby grants Tenant the appurtenant right, at Tenant’s
sole cost and expense, to (a) construct, install, operate, maintain and
use the Emergency Generator in the location shown on Exhibit H
attached 


 


E-6

















 


hereto (the “Generator Space”),
and (b) construct, run, install, operate, maintain, and use conduits,
wires and other appurtenances to and from the Emergency Generator through the
Common Areas of the Building reasonably designated by Landlord to the Premises
(collectively, the “Appurtenances”),
and (c) use the Emergency Generator (in instances where emergency power is
required by Tenant) and to test at other times and intervals as advised by the
manufacturer or as required by law or as reasonably agreed upon by Landlord and
Tenant).  Tenant’s use and maintenance of
the Emergency Generator shall at all times comply will all applicable
laws.  Tenant acknowledges that Tenant
shall be solely responsible for the use, operation and maintenance and securing
of the Emergency Generator, that Landlord shall have absolutely no liability in
connection therewith except damage caused to the Emergency Generator by
Landlord’s gross negligence or willful misconduct, and that Tenant shall defend,
indemnify and hold Landlord harmless from all loss, cost, liability and expense
in connection with the Emergency Generator except to the extent due to Landlord’s
gross negligence or willful misconduct. 
Notwithstanding the foregoing or anything in this Lease to the contrary,
upon the Expiration Date or the earlier termination of the Lease or Tenant’s
use of the Generator Space, Tenant shall have no obligation to remove the
Emergency Generator or any ancillary equipment relating thereto from the Generator
Space, but may do so if Tenant so chooses. 
Tenant agrees that the term “Premises,” as
used in the Lease, shall include the Generator Space.


 


Notwithstanding anything
herein to the contrary, provided that (i) Tenant submits the complete
applications for all permits, variances, consents and other approvals necessary
for the installation, operation and use of the Emergency Generator from all
municipal and other applicable governmental authorities (collectively, the “Required Generator Approvals”) within thirty (30) days after
the execution of this Lease, (ii) Tenant diligently pursues all Required
Generator Approvals, including, if necessary, pursuing all appeals available to
Tenant and making all reasonable alterations to the specifications of the
Emergency Generator as may be required by municipal or other applicable
governmental authorities, and (iii) notwithstanding the foregoing, Tenant
fails to obtain the Required Generator Approvals within one hundred twenty
(120) days after the execution of this Lease, then, subject to the terms and
conditions set forth in this Section 36, Tenant shall have a one (1) time
option to terminate this Lease and reinstate the Original Lease which Tenant
may exercise by delivering to Landlord written notice thereof (“Tenant’s Early Termination Notice”) within ten (10) days
after the expiration of such one hundred twenty (120) day period.  Landlord shall cooperate with Tenant
reasonably and in good faith, but at Tenant’s sole cost and expense, in
connection with Tenant’s obtaining the Required Generator Approvals.  In the event that Tenant exercises the option
to terminate this Lease in accordance with this Section 36, then (i) this
Lease shall terminate and the Original Lease shall continue in full force and
effect, provided that the Lease Term (as defined in the Original Lease) shall
be extended to June 30, 2009 at the current monthly rental rate set forth
in the Original Lease (and not at the rental rate applicable to any holdover
period), and (ii) Tenant shall pay to Landlord the Early Termination
Payment as set forth below.  As used
herein, the “Early Termination Payment” shall
mean the sum of (1) all legal fees payable by Landlord in connection with
the negotiation and execution of the Lease, (2) all architectural, design
and construction review fees payable by Landlord in connection with the Initial
Alterations or the preparation of the First Additional Space and the Second
Additional Space for occupancy by Tenant, (3) all portions of the
Construction Allowance or Preliminary Design Allowance advanced to Tenant by
Landlord as of the date Landlord receives Tenant’s Early Termination 


 


E-7

















 


Notice, and (4) all costs and expenses incurred
by Landlord in connection with Landlord’s Work (except to the extent such costs
and expenses are explicitly excluded under Paragraph 1 of Exhibit D)
as of the date Landlord receives Tenant’s Early Termination Notice, it being
agreed that the portion of the Early Termination Payment described in (1) and
(2) above shall not, in the aggregate, exceed Fifty Thousand Dollars
$50,000.


 


Promptly after Landlord’s
receipt of Tenant’s Early Termination Notice, Landlord shall deliver to Tenant
written notice (“Landlord’s Early Termination Payment Notice”)
setting forth the amount of the Early Termination Payment and attaching
reasonable evidence supporting such amount. 
In the event that the Early Termination Payment is less than the
Termination Deposit (as defined below), Landlord shall, simultaneously with the
delivery of Landlord’s Early Termination Payment Notice, return the difference
between the Termination Deposit and the Early Termination Payment to Tenant by
wiring such difference in accordance with wiring instructions provided by
Tenant.  In the event that the Early
Termination Payment is greater than the Termination Deposit, Tenant shall pay
the difference between the Early Termination Payment and the Termination
Deposit to Landlord within seven (7) days after Tenant’s receipt of
Landlord’s Early Termination Payment Notice (Tenant and Landlord hereby
acknowledging that Tenant’s Early Termination Notice shall be of no force or
effect if such difference is not paid by Tenant within such period).  As used herein, the term “Termination Deposit” shall mean that certain $50,000 deposit
Tenant delivered to Landlord prior to the execution of this Lease, which funds
are being held by Landlord as security for Tenant’s obligations under this Section 36.  The Termination Deposit shall not accrue
interest, Landlord shall not be required to keep the Termination Deposit separate
from its other accounts and Landlord shall have no fiduciary responsibilities
or trust obligations whatsoever with regard to the Termination Deposit. 
If Tenant obtains the Required Generator Approvals within one hundred
twenty (120) days after the execution of this Lease or Tenant fails to timely
exercise its option to terminate this Lease under this Section 36, then
Landlord shall return the full amount of the Termination Deposit promptly after
receiving a written request therefor from Tenant by wiring such amount in
accordance with wiring instructions provided by Tenant.


 


37.           Parking.  Within thirty (30) days after the execution
of this Lease, Tenant shall have the right to purchase for its employees and
guests up to twelve (12) monthly passes (the passes actually purchased by
Tenant being referred to herein as the “Parking Passes”)
to the parking garage located at the 101 Federal Street Building (the “Parking Garage”). 
Tenant shall have the right to re-purchase the Parking Passes throughout
the Term of this Lease.  Tenant may, at
any time during the Term of this Lease, elect not to re-purchase any of the
Parking Passes; provided, however, that Tenant shall be required to give the
Parking Garage Operator (hereinafter defined) at least thirty (30) days prior
written notice of such election; and provided, further, that once Tenant has
made such an election with respect to any of the Parking Passes, Tenant shall
not have any further right to re-purchase such Parking Passes under this Section 37.  The Parking Passes shall be sold (or re-sold)
to Tenant at the prevailing rate charged for such Parking Passes by the
operator of the Parking Garage (the “Parking Garage Operator”),
which rate may be adjusted from time to time. 
The foregoing rights shall be subject to Tenant’s compliance with the
reasonable rules and regulations promulgated by Landlord and/or the
Parking Garage Operator with respect to the Parking Garage from time to
time.  Neither the Landlord nor the
Parking Garage Operator shall have any liability whatsoever for any property 


 


E-8

















 


damage, loss or theft and/or personal injury which
might occur as a result of or in connection with the use of the Parking Garage
by Tenant, its employees, agents, servants, customers, invitees and licensees,
and Tenant hereby agrees to indemnify and hold Landlord and the Parking Garage
Operator harmless for, from and against any and all costs, claims, expenses, and/or
causes of action which Landlord or the Parking Garage Operator may incur in
connection with or arising out of Tenant’s use of the Parking Garage.  Neither Landlord nor the Parking Garage
Operator shall be liable to Tenant in damages or otherwise under any
circumstances for failure to provide parking if at any time Landlord or the
Parking Garage Operator is prevented from doing so for reasons beyond its
reasonable control, including without limitation, as the result of a taking or
condemnation, or during any temporary need to close the Parking Garage or
portions thereof for maintenance, repair or replacement.


 


 [END OF
EXHIBIT E]


 


E-9

















 


ATTACHMENT #1


 


OFFER SPACE


 


[To Be Attached]


 


E-10

















 


EXHIBIT F


 


COMMENCEMENT LETTER


 


Date


 


Tenant


Address


 


Re:                               Commencement
Letter with respect to that certain Lease dated
                                                            
by and between
                                                ,
as Landlord, and
                                    ,
a(n)                     ,
as Tenant, for a Rentable Area in the Premises of
                  
square feet on the
                  
floor of the Building located at
                                      ,
              ,
        .


 


Dear
                          :


 


In accordance with the terms and conditions of the
above referenced Lease, Tenant hereby accepts possession of the Premises and
agrees as follows:


 


The Second Additional Space Commencement Date of the
Lease is
                                                  ;


 


The Expiration Date of the Lease is
                                                        .


 


Please acknowledge your acceptance of possession and
agreement to the terms set forth above by signing all three (3) copies of
this Commencement Letter in the space provided and returning two (2) fully
executed copies of the same to my attention.


 


Sincerely,


 


XXXXXXXXX


Property Manager


 


Agreed and Accepted:


 


TENANT:


	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
				



 


F-1

















 


EXHIBIT G


 


JANITORIAL AND
CLEANING SPECIFICATIONS


 


Nightly Tenant Cleaning (Daily)


 


1.             All stone, ceramic, tile, marble,
terrazzo and other unwaxed flooring to be swept nightly using approved
dust-down preparations; wash flooring weekly, scrub when necessary.


 


2.             All linoleum, vinyl, rubber, asphalt tile
and other similar types of flooring (that may be waxed) to be swept nightly
using approved dust-down preparation. 
Waxing, if any, shall be done at Tenant’s expense.     Mop up and wash floors for spills and
smears.


 


3.             All carpeting and rugs shall be vacuum
cleaned each night.


 


4.             Hand dust with treated cloth and wipe
clean all furniture, horizontal surfaces, office equipment, door ledges and
countertops.


 


5.             Empty and clean as needed all waste
receptacles nightly and remove from the demised premises wastepaper to
designated area.  Replace plastic liners
as necessary.


 


6.             Dust interior of all waste disposal cans
and baskets weekly; damp-dust as necessary.


 


7.             Wash clean all water fountains and
coolers nightly.


 


8.             Dust all floor and other ventilating
louvres within reach weekly; damp wipe as necessary.


 


9.             Dust all telephones weekly.


 


10.           Spot clean glass on tenant entrance doors
and interior glass partitions.


 


11.           Wash all toilets, sinks and other
bathroom surfaces nightly and scrub such surfaces as necessary.


 


12.           Turn off all lights and lock doors
leaving the premises in an orderly condition.


 


Periodic Cleaning (Monthly)


 


(To be performed as
needed unless otherwise specified but not less than once each month or as
hereinafter provided).


 


1.             Wash and remove all finger marks, ink
stains, smudges, scruff marks and other marks from metal partitions, sills, all
vertical surfaces (doors, walls, window sills) and other surfaces as necessary.


 


2.             Dust and clean all baseboards and other
fixtures as necessary, but not less than once each month.


 


G-1

















 


High Dusting (Quarterly)


 


1.             Dust all pictures, frames, charts, graphs
and similar wall hangings not reached in nightly cleaning.


 


2.             Dust all vertical surfaces such as walls,
partitions, doors, bucks and ventilating louvers, grills, high moldings and
other surfaces not reached in a nightly cleaning.


 


3.             Dust all overhead pipes, sprinklers,
ventilating and air conditioning louvers, ducts, high moldings and other high
areas not reached in nightly cleaning.


 


4.             Dust all vertical blinds and window
frames.


 


5.             Dust exterior of lighting fixtures.


 


6.             Dust all air vents and return air grids.


 


[END OF EXHIBIT G]


 


G-2

















 


EXHIBIT H


 


GENERATOR SPACE


 


[To Be Attached]


 


H-1
















 


EXHIBIT I


 


FORM OF SNDA


 


 


                                        

(Lender)


 


 


- and -


 


 


                                        

(Tenant)


 






 


SUBORDINATION, NON-DISTURBANCE

AND ATTORNMENT AGREEMENT


 






 


Dated:


 


Location:


 


Section:

Block:

Lot:

County:


 


PREPARED BY AND UPON

RECORDATION RETURN TO:


 


Cadwalader, Wickersham & Taft LLP

One World Financial Center

New York, New York 10281

Attention:  John M. Zizzo, Esq.


 


File No.:

Title No.:


 


I-1

















 


SUBORDINATION, NON DISTURBANCE AND ATTORNMENT AGREEMENT


 


THIS SUBORDINATION, NON DISTURBANCE AND ATTORNMENT
AGREEMENT (this “Agreement”) is made as of the
              
day of
              ,
20       by and between [LENDER], having an
address at [LENDER’S ADDRESS] (“Lender”) and
                                        
having an address at
                                                                              
(“Tenant”).


 


RECITALS:


 


A.            Lender has made a loan in the approximate
amount of
$              
to Landlord (defined below), which Loan is given pursuant to the terms and
conditions of that certain Loan Agreement dated
              ,
20       between Lender and Landlord (the “Loan
Agreement”).  The Loan is evidenced
by a certain Promissory Note dated
              
20      , given by Landlord to Lender (the “Note”)
and secured by a certain Mortgage and Security Agreement dated
              ,
20      , given by Landlord to Lender (the “Mortgage”),
which encumbers the fee estate of Landlord in certain premises described in Exhibit A
attached hereto (the “Property”);


 


B.            Tenant occupies a portion of the Property
under and pursuant to the provisions of a certain lease dated
              ,
            
between
              ,
as landlord (“Landlord”) and Tenant, as tenant (the “Lease”); and


 


C.            Tenant has agreed to subordinate the
Lease to the Mortgage and to the lien thereof and Lender has agreed to grant
non-disturbance to Tenant under the Lease on the terms and conditions
hereinafter set forth.


 


AGREEMENT:


 


For good and valuable consideration, Tenant and Lender
agree as follows:


 


1.             Subordination. 
Tenant agrees that the Lease and all of the terms, covenants and
provisions thereof and all rights, remedies and options of Tenant thereunder
are and shall at all times continue to be subject and subordinate in all
respects to the Mortgage and to the lien thereof and all terms, covenants and
conditions set forth in the Mortgage and the Loan Agreement including without
limitation all renewals, increases, modifications, spreaders, consolidations,
replacements and extensions thereof and to all sums secured thereby with the
same force and effect as if the Mortgage and Loan Agreement had been executed,
delivered and (in the case of the Mortgage) recorded prior to the execution and
delivery of the Lease.


 


2.             Non-Disturbance. 
Lender agrees that if any action or proceeding is commenced by Lender
for the foreclosure of the Mortgage or the sale of the Property, Tenant shall
not be named as a party therein unless such joinder shall be required by law; provided,
however, such joinder shall not result in the termination of the Lease
or disturb the Tenant’s possession or use of the premises demised thereunder,
and the sale of the Property in any such action or proceeding shall he made subject
to all rights of Tenant under the Lease except as set forth in Section 3
below, provided that at the time of the commencement of any such action
or proceeding or at the time of any such sale or exercise of any such other
rights (a) the term of the 


 


I-1

















 


Lease shall have
commenced pursuant to the provisions thereof; (b) Tenant shall be in
possession of the premises demised under the Lease, (c) the Lease shall be
in full force and effect and (d) Tenant shall not be in default under any
of the terms, covenants or conditions of the Lease or of this Agreement on
Tenant’s part to be observed or performed beyond the expiration of any
applicable notice or grace periods.


 


3.             Attornment.  Lender and
Tenant agree that upon the conveyance of the Property by reason of the
foreclosure of the Mortgage or the acceptance of a deed or assignment in lieu
of foreclosure or otherwise, the Lease shall not be terminated or affected
thereby (at the option of the transferee of the Property (the “Transferee”)
if the conditions set forth in Section 2 above have not been met at
the time of such transfer) but shall continue in full force and effect as a
direct lease between the Transferee and Tenant upon all of the terms, covenants
and conditions set forth in the Lease and in that event, Tenant agrees to
attorn to the Transferee and the Transferee shall accept such attornment, and
the Transferee shall not be (a) obligated to complete any construction
work required to be done by Landlord pursuant to the provisions of the Lease or
to reimburse Tenant for any construction work done by Tenant, (b) liable (i) for
Landlord’s failure to perform any of its obligations under the Lease which have
accrued prior to the date on which the Transferee shall become the owner of the
Property, or (ii) for any act or omission of Landlord, whether prior to or
after such foreclosure or sale, (c) required to make any repairs to the
Property or to the premises demised under the Lease required as a result of fire,
or other casualty or by reason of condemnation unless the Transferee shall be
obligated under the Lease to make such repairs and shall have received
sufficient casualty insurance proceeds or condemnation awards to finance the
completion of such repairs, (d) required to make any capital improvements
to the Property or to the premises demised under the Lease which Landlord may
have agreed to make, but had not completed, or to perform or provide any
services not related to possession or quiet enjoyment of the premises demised
under the Lease, (e) subject to any offsets, defenses, abatements or
counterclaims which shall have accrued to Tenant against Landlord prior to the
date upon which the Transferee shall become the owner of the Property, (f) liable
for the return of rental security deposits, if any, paid by Tenant to Landlord
in accordance with the Lease unless such sums are actually received by the
Transferee, (g) bound by any payment of rents, additional rents or other
sums which Tenant may have paid more than one (1) month in advance to any
prior Landlord unless (i) such sums are actually received by the
Transferee or (ii) such prepayment shall have been expressly approved of
by the Transferee, (h) bound to make any payment to Tenant which was
required under the Lease, or otherwise, to be made prior to the time the
Transferee succeeded to Landlord’s interest, (i) bound by any agreement
amending, modifying or terminating the Lease made without the Lender’s prior
written consent prior to the time the Transferee succeeded to Landlord’s
interest or (j) bound by any assignment of the Lease or sublease of the
Property, or any portion thereof, made prior to the time the Transferee
succeeded to Landlord’s interest other than if pursuant to the provisions of
the Lease.


 


4.             Notice to Tenant. 
After notice is given to Tenant by Lender that the Landlord is in
default under the Note and the Mortgage and that the rentals under the Lease
should be paid to Lender pursuant to the terms of the assignment of leases and
rents executed and delivered by Landlord to Lender in connection therewith,
Tenant shall thereafter pay to Lender or as directed by the Lender, all rentals
and all other monies due or to become due to 


 


I-2

















 


Landlord under the Lease
and Landlord hereby expressly authorizes Tenant to make such payments to Lender
and hereby releases and discharges Tenant from any liability to Landlord on
account of any such payments.


 


5.             Lender’s Consent. 
Tenant shall not, without obtaining the prior written Consent of Lender,
(a) enter into any agreement amending, modifying or terminating the
Lease,  (b) prepay any of the rents,
additional rents or other sums due under the Lease for more than one (1) month
in advance of the due dates thereof, (c) voluntarily surrender the
premises demised under the Lease or terminate the Lease without cause or
shorten the term thereof, or (d) assign the Lease or sublet the premises
demised under the Lease or any part thereof other than pursuant to the
provisions of the Lease; and any such amendment, modification, termination,
prepayment, voluntary surrender, assignment or subletting, without Lender’s
prior consent, shall not be binding upon Lender.


 


6.             Lender to Receive Notices. 
Tenant shall provide Lender with copies of all written notices sent to
Landlord pursuant to the- Lease simultaneously with the transmission of such
notices to the Landlord.  Tenant shall
notify Lender of any default by Landlord under the Lease which would entitle
Tenant to cancel the Lease or to an abatement of the rents, additional rents or
other sums payable thereunder, and agrees that, notwithstanding any provisions
of the Lease to the contrary, no notice of cancellation thereof or of such an
abatement shall be effective unless Lender shall have received notice of
default giving rise to such cancellation or abatement and shall have failed
within sixty (60) days after receipt of such notice to cure such default, or if
such default cannot be cured within sixty (60) days, shall have failed within
sixty (60) days after receipt of such notice to commence and thereafter
diligently pursue any action necessary to cure such default.


 


7.             Notices.  All notices
or other written communications hereunder shall be deemed to have been properly
given (i) upon delivery, if delivered in person or by facsimile
transmission with receipt acknowledged by the recipient thereof and confirmed
by telephone by sender, (ii) one (1) Business Day (hereinafter
defined) after having been deposited for overnight delivery with any reputable
overnight courier service, or (iii) three (3) Business Days after
having been deposited in any post office or mail depository regularly
maintained by the U.S. Postal Service and sent by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:


 


	
  If to Tenant:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Attention:

  	
   

  	
   

  
	
   

  	
  Facsimile No.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to Lender:

  	
  [Lender’s Notice]

  	
   

  
					



 


I-3

















 


	
  With a copy to:

  	
  Cadwalader, Wickersham & Taft LLP

  	
   

  
	
   

  	
  One World Financial Center

  	
   

  
	
   

  	
  New York, New York 10281

  	
   

  
	
   

  	
  Attention: 
  John M. Zizzo, Esq.

  	
   

  
	
   

  	
  Facsimile No.  (212) 504-6666

  	
   

  



 


or addressed as such party may from time to time
designate by written notice to the other parties.  For purposes of this Section 7,
the term “Business Day” shall mean a day on which commercial banks are
not authorized or required by law to close in New York, New York.


 


Either party by notice to the other may designate
additional or different addresses for subsequent notices or communications.


 


8.             Joint and Several Liability.  If Tenant consists of more than one person,
the obligations and liabilities of each such person hereunder shall be joint
and several.  This Agreement shall be
binding upon and inure to the benefit of Lender and Tenant and their respective
successors and assigns.


 


9.             Definitions.  The term “Lender” as used herein shall
include the successors and assigns of Lender and any person, party or entity
which shall become the owner of the Property by reason of a foreclosure of the
Mortgage or the acceptance of a deed or assignment in lieu of foreclosure or
otherwise.  The term “Landlord” as
used herein shall mean and include the present landlord under the Lease and
such landlord’s predecessors and successors in interest under the Lease, but
shall not mean or include Lender.  The
term “Property” as used herein shall mean the Property, the improvements now or
hereafter located thereon and the estates therein encumbered by the Mortgage.


 


10.           No Oral Modifications.  This Agreement may not be modified in any
manner or terminated except by an instrument in writing executed by the parties
hereto.


 


11.           Governing Law.  This Agreement shall be deemed to be a
contract entered into pursuant to the laws of the State where the Property is
located and shall in all respects be governed, construed, applied and enforced
in accordance with the laws of the State where the Property is located.


 


12.           Inapplicable Provisions.  If any term, covenant or condition of this
Agreement is held to be invalid, illegal or unenforceable in any respect, this
Agreement shall be construed without such provision.


 


13.           Duplicate Originals; Counterparts.  This Agreement may be executed in any number
of duplicate originals and each duplicate original shall be deemed to be an
original.  This Agreement may be executed
in several counterparts, each of which counterparts shall be deemed an original
instrument and all of which together shall constitute a single Agreement.  The failure of any party hereto to execute
this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.


 


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14.           Number and Gender.  Whenever the context may require, any
pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural and vice versa.


 


15.           Transfer of Loan.  Lender may sell, transfer and deliver the
Note and assign the Mortgage, this Agreement and the other documents executed
in connection therewith to one or more investors in the secondary mortgage
market (“Investors”).  In
connection with such sale, Lender may retain or assign responsibility for
servicing the loan, including the Note, the Mortgage, this Agreement and the
other documents executed in connection therewith, or may delegate some or all
of such responsibility and/or obligations to a servicer including, but not
limited to, any subservicer or master servicer, on behalf of the Investors.  All references to Lender herein shall refer
to and include any such servicer to the extent applicable.


 


16.           Further Acts.  Tenant will, at the cost of Tenant, and
without expense to Lender, do, execute, acknowledge and deliver all and every
such further acts and assurances as Lender shall, from time to time, require,
for the better assuring and confirming unto Lender the property and rights
hereby intended now or hereafter so to be, or for carrying out the intention or
facilitating the performance of the terms of this Agreement or for filing,
registering or recording this Agreement, or for complying with all applicable
laws.


 


17.           Limitations on Lender’s Liability.  Tenant acknowledges that Lender is obligated
only to Landlord to make the Loan upon the terms and subject to the conditions
set forth in the Loan Agreement.  In no
event shall Lender or any purchaser of the Property at foreclosure sale or any
grantee of the Property named in a deed-in-lieu of foreclosure, nor any heir,
legal representative, successor, or assignee of Lender or any such purchaser or
grantee (collectively the Lender, such purchaser, grantee, heir, legal
representative, successor or assignee, the “Subsequent Landlord”) have
any personal liability for the obligations of Landlord under the Lease and
should the Subsequent Landlord succeed to the interests of the Landlord under
the Lease, Tenant shall look only to the estate and property of any such
Subsequent Landlord in the Property for the satisfaction of Tenant’s remedies
for the collection of a judgment (or other judicial process) requiring the
payment of money in the event of any default by any Subsequent Landlord as
landlord under the Lease, and no other property or assets of any Subsequent
Landlord shall he subject to levy, execution or other enforcement procedure for
the satisfaction of Tenant’s remedies under or with respect to the Lease; provided,
however, that the Tenant may exercise any other right or remedy provided
thereby or by law in the event of any failure by Subsequent Landlord to perform
any such material obligation.


 


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IN WITNESS WHEREOF,
Lender and Tenant have duly executed this Agreement as of the date first above
written.


 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Lender]:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  a

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
							



 


The undersigned accepts and agrees to the provisions
of Section 4 hereof:


 


 


	
  LANDLORD:

  
	
   

  
	
   

  
	
   

  	
  , a

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
							



 


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EXHIBIT A


 


LEGAL DESCRIPTION


 


That certain parcel of
land in Boston, Suffolk County, Massachusetts shown as Lots 1 and 2 on a plan
entitled “Plan of Land, Boston, Mass.”  January 4,
1982 drawn by Harry R. Feldman, Inc., Land Surveyors, recorded with the
Suffolk Registry of Deeds in Book 9896, Page 190, said Lot 1 being more
particularly described as follows:


 


LOT 1


 


A certain parcel of land
situated in the City of Boston, Suffolk County, Commonwealth of Massachusetts,
bounded and described as follows:


 


Beginning at the
intersection of the southerly sideline of Franklin Street and the westerly side
of Federal Street; 


 


thence running S 02° 47’
00” E along the westerly sideline of said Federal Street a distance of 106.43
feet;


 


thence running by a line
through a party wall the following courses:


 


S 88° 41’ 20” W a
distance of 70.37 feet;


 


S 89° 16’ 40” W a
distance of 15.30 feet;


 


N 88° 39’ 30” W a
distance of 15.30 feet;


 


N 89° 09’ 30” W a
distance of l1.40 feet;


 


S 88° 16’ 50” W a distance
of 43.76 feet;


 


S 87° 28’ 30” W a
distance of 24.82 feet;


 


thence turning and
running S 51° 21’ 42” W a distance of 0.50 feet;


 


thence turning and
running S 01° 08’ 26” E a distance of 57.54 feet;


 


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thence turning and
running N 86° 56’ 49” W a distance of 51.86 feet to the easterly sideline of
said Devonshire Street;


 


thence turning and
running N 03° 04’ 01” E along the easterly sideline of said Devonshire Street,
a distance of 44.03 feet; 


 


thence turning and
running N 27° 39’ 20” E along the easterly sideline of Devonshire Street a
distance of 48.13 feet to a point of curvature; 


 


thence turning and
running northeasterly along the easterly sideline of Devonshire Street by a
curved line to the left of radius 367.40 feet a distance of 81.20 feet to the
intersection of the southerly sideline of Franklin Street and the easterly
sideline of Devoshire Street;


 


thence turning and
running  N 89° 00’ 40” E along the
southerly sideline of Franklin Street a distance of 172.61 feet to the point of
beginning.


 


Containing 23,599 square
feet more or less.


 


LOT 2


 


A certain parcel of land
situated in the City of Boston, Suffolk County, Commonwealth of Massachusetts,
bounded and described as follows:


 


Beginning at a point on
the westerly sideline of Federal Street, said point is S 02° 47’ 00” E and a
distance of 106.43 feet from the intersection of the southerly sideline of
Franklin Street and the westerly sideline of said Federal Street; 


 


thence turning and
running S 02° 47’ 00 E along the westerly sideline of Federal Street a distance
of 134.58 feet; 


 


thence turning and
running N 89° 39’ 27” W a distance of 107.01 feet; 


 


thence turning and
running N 00° 10’ 50” W a distance of 73.09 feet;


 


thence turning and
running S 89° 23’ 47” a distance of 79.43 feet;


 


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thence turning and
running N 01° 08’ 26” W a distance of 57.54 feet;


 


thence turning and
running N 51° 21’ 42” E a distance of 0.50 feet;


 


thence turning and running
by a line through a party wall the following courses:


 


N 87° 28’ 30” E a
distance of 24.82 feet;


 


N 88° 16’ 50” E a
distance of 43.76 feet;


 


S 89° 09’ 30” E a
distance of 11.40 feet;


 


S 88° 39’ 30” E a
distance of 15.30 feet;


 


N 89° 16’ 40” E a distance
of 15.30 feet;


 


N 88° 41’ 20” E a
distance of 70.37 feet to the point of beginning.


 


Containing 18,537 square
feet more or less.


 


Together with the benefit
of rights of the City of Boston as set forth in Easement Agreement by and
between the City of Boston and Franklin Federal Farmers dated April 14,
1986 and recorded in Book 12490, Page 283.


 


NOTE:  As herein used, “recorded” shall mean “recorded
with the Suffolk County Registry of Deeds”.


 


Tax Parcel ID:  0304199000 (As Lot 1); and


 


Tax Parcel ID:  0304198000 (As to Lot 2).


 


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EXHIBIT J


 


FORM OF GUARANTY


 


GUARANTY


 


This Guaranty (this “Guaranty”) is
executed and delivered as of this
         day of
                      ,
2008, by the undersigned, ASLAN REALTY PARTNERS III, L.L.C., a Delaware limited
liability company, having an address of 150 North Wacker Drive, Suite 800,
Chicago, Illinois, 60606  (the “Guarantor”), to
and for the benefit of EnerNOC, Inc., a Delaware corporation having an
address of 75 Federal
Street, Suite 300, Boston, Massachusetts 02110 (the “Tenant”).


 


WITNESSETH


 


WHEREAS, Transwestern Federal,
L.L.C, a Delaware limited liability company (the “Landlord”), and Tenant have
entered into a lease (the “Lease”) of even date herewith for premises located
at 75-101 Federal Street, Boston, Massachusetts; and


 


WHEREAS, pursuant to the Lease,
Landlord has agreed to fund a construction allowance (the “Construction
Allowance”) of up to One Million Three Hundred Forty-Six Thousand Six Hundred
Ten Dollars ($1,346,610) upon the terms and conditions set forth in the Lease;
and


 


WHEREAS, the Tenant has advised
the Guarantor that it will not enter into the aforesaid Lease with the Landlord
unless, among other matters, the Guarantor guarantees performance of the
Guaranteed Obligations (hereinafter defined) as hereinafter provided; and


 


WHEREAS, the Guarantor is willing
and has agreed to guarantee the performance of the Guaranteed Obligations as
hereinafter provided.


 


NOW, THEREFORE, for good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor agrees as follows:


 


1.             Definitions.  As used herein, the following terms shall
have the following meanings:


 


1.1           The term “Guaranteed Obligations”
shall mean:


 


(a)           the payment of the Construction
Allowance in accordance with the terms and conditions set forth in the Lease;
and


 


(b)           the payment of any and all costs and
expenses incurred by the Tenant in the successful enforcement of any of its
rights under this Guaranty, including without limitation, costs of litigation
and  reasonable attorneys’ fees.


 


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1.2           All capitalized terms
used herein and not otherwise defined shall have the same meaning as set forth
in the Lease.


 


2.             Guaranty
of Liabilities.


 


2.1           The Guarantor hereby guarantees to
the Tenant the full, complete and punctual payment (and not merely the
collectibility) of each and all of the Guaranteed
Obligations in the event that (i) Morgan Stanley Mortgage Capital, Inc.
(“Lender”), which is party to that certain Subordination, Non Disturbance and
Attornment Agreement dated as of
                      ,
2008 by and between Lender and the Tenant, forecloses on the Property, takes a
deed in lieu of foreclosure or otherwise succeeds to Landlord’s interest under
the Lease, (ii) Lender has not agreed to fund the Construction Allowance,
and (iii) Lender does not in fact fund any portion of the Construction
Allowance when due within the period required pursuant to the Lease.  Subject to the preceding sentence, Guarantor
hereby covenants and agrees that it is liable for the Guaranteed Obligations as
a primary obligor and not merely as a surety.


 


2.2           Subject to Section 9 of this
Agreement, this Guaranty shall terminate and be of no further effect upon the
earliest to occur of (i) the termination of the Lease, (ii) June 30,
2011, (iii) the full performance of the Guaranteed Obligations by the
Landlord or the Guarantor in accordance with the terms of the Lease and as
otherwise required hereunder, or (iv) an event triggering the termination
of this Guaranty as set forth in Section 25 of the Lease; provided,
however, that with respect to clause (ii) only, this Guaranty shall not so
terminate with respect to any written claims made by Tenant hereunder prior to
such date.


 


3.             Subordination
to Landlord’s Lender. 
Tenant’s rights under this Guaranty are fully and unconditionally
subordinate to the rights of any third-party mortgagee of the Property to
exercise any rights and remedies that it may have from time to time against
Guarantor, whether pursuant to a separate guaranty or otherwise.  The terms of this Section 3 are
self-operative, but, if requested by any such mortgagee, Tenant shall enter
into a reasonable instrument evidencing such subordination.  Tenant shall not exercise any of its rights
or remedies pursuant to this Guaranty unless and until any such obligations of
Guarantor to such mortgagee have been satisfied in full.  Prior to exercising any such rights or
remedies, Tenant shall provide any such mortgagee of which Tenant has notice
with written notice of Tenant’s intent to exercise any such rights or remedies.


 


4.             Guaranty
Absolute and Unconditional.  This is a continuing, absolute and
unconditional Guaranty, which is subject to no limitations except those
expressly stated herein or otherwise agreed to by the Guarantor and the Tenant
in writing.  This Guaranty is not
conditioned or contingent upon the genuineness, validity, or enforceability of
the Lease or the pursuit by the Tenant of any remedies which the
Tenant has now or may hereafter have with respect thereto under the Lease at
law, in equity, or otherwise and shall not be adversely affected by any
modification or amendment thereto. 
Furthermore, the Guarantor shall forthwith pay all sums due to the
Tenant hereunder without regard to any 


 


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counterclaim,
setoff, deduction, or defense of any kind which any party obligated under the
Lease may have or assert, and without abatement, suspension, deferment, or
reduction on account of any occurrence whatsoever.


 


5.             No
Release.  Except as
provided for in Section 2 above, the Tenant shall have no obligation to
exercise any right or remedy or to seek any recovery from any party obligated
under the Lease prior to proceeding hereunder against the Guarantor, and
likewise the enforcement of the Tenant’s rights against the Landlord shall not
impair the right of the Tenant to enforce this Guaranty against the
Guarantor.  The Guarantor expressly
agrees that any such action by the Tenant shall never operate as a release or
other diminution of the liability of the Guarantor under this Guaranty.


 


6.             Guarantor’s
Representations and Warranties.  The Guarantor hereby represents and warrants,
that: (a) neither the execution nor performance of this Guaranty will
violate any indenture, agreement or other instrument to which the Guarantor is
a party, or by which the Guarantor is bound, or be in conflict with, result in
a breach of or constitute with due notice or lapse of time or both a default
under, any such indenture, agreement or instrument; (b) to the best of
Guarantor’s actual knowledge, without any duty of inquiry or investigation,
there is no action suit or proceeding at law or in equity or by or before any
governmental instrumentality or other agency now pending or, to the knowledge
of the Guarantor, threatened or affecting the Guarantor which, if adversely
determined, would have a material adverse effect on the Guarantor’s ability to
perform its obligations under this Guaranty; (c) the Guarantor is not
party to any agreement or instrument or subject to any restriction adversely
affecting the Guarantor’s ability to perform its obligations under this
Guaranty; (d) to the best of Guarantor’s actual knowledge, without any
duty of inquiry or investigation, the Guarantor is not in material default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement or instrument to which the Guarantor
is a party, which would have a material adverse effect on Guarantor’s ability
to perform its obligations under this Guaranty; (e) Guarantor holds an
indirect ownership interest in Landlord and will derive benefits from the
execution of the Lease; and (f) Guarantor has a current net worth of at
least $500,000,000.


 


7.             Guarantor’s
Waivers.  The Guarantor
waives notice of the incurring of Guaranteed Obligations, the acceptance of
this Guaranty by the Tenant, presentment and demand for payment, protest,
notice of protest, notice of dishonor or nonpayment of any instrument
evidencing any Guaranteed Obligations, acceleration, and intent to accelerate
any right to require suit against the Landlord or any other party
before enforcing this Guaranty; any right to have security applied before
enforcing this Guaranty in any manner, any right to marshalling of assets; and
all other suretyship defenses.  The
Guarantor consents and agrees that renewals and extensions of time of payment,
surrender, release, exchange, substitution, taking of additional collateral
security, taking or release of any guaranties, abstaining from taking advantage
of or realizing upon any collateral security or other guaranties and any and
all other forbearances or indulgences granted by the Tenant to the Landlord or
any other party may be made, granted and effected by the Tenant without notice
to the Guarantor and without in any manner affecting the Guarantor’s 


 


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liability
hereunder.  Any notice to the Guarantor
by the Tenant at any time shall not imply that such notice or any further or
similar notice was or is required.


 


8.             Fees
and Expenses. 
The Guarantor agrees to pay the Tenant any and all costs, expenses and
reasonable attorneys’ fees paid or incurred by the Tenant in successfully
enforcing this Guaranty.


 


9.             Preference,
Etc.  The Guarantor
agrees that this Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time payment, or any part thereof, of the principal
of, interest on, or fees with respect to any of the Guaranteed Obligations is
rescinded or must otherwise be restored or returned by the Tenant upon
insolvency, bankruptcy or reorganization of the Landlord or the Guarantor, or
otherwise, all as though such payment had not been made.


 


10.           Choice
of Law; Modification; Successors and Assigns.  This Guaranty is executed under and shall be
construed in accordance with the local laws (excluding the conflict of laws
rules, so-called) of The Commonwealth of Massachusetts (hereinafter the “State”).  The Guaranty may not be amended, modified or
waived except by a written instrument describing such amendment, modification
or waiver executed by the Guarantor and the Tenant.  The Guaranty may not be assigned by the
Guarantor except to a replacement guarantor as provided under the Lease and may
not be assigned by Tenant other than by assignment of the Tenant’s interest in
the Lease to a Permitted Transferee.  It
shall inure to the benefit of the Tenant and its successors and, to the extent
set forth in the immediately preceding sentence, assigns and shall bind the
Guarantor and the successors, representatives and heirs of the Guarantor.


 


11.           WAIVER
OF JURY TRIAL. 
THE GUARANTOR HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS GUARANTY, AND AGREES THAT ANY
SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.


 


12.           Jurisdiction
and Venue. 
The Guarantor hereby irrevocably consents that any legal action or
proceeding against the Guarantor or any of the Guarantor’s property with
respect to any matter arising under or relating to this Guaranty may be brought
in any court of the State, or any Federal Court of the United States of America
located in the State or any other state where the Guarantor shall be present,
as the Tenant may elect, and by execution and delivery of this Guaranty the
Guarantor hereby submits to and accepts with regard to any such action or
proceeding, for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts.  The Guarantor further irrevocably consents to
the service of process in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to the
Guarantor at its address set forth herein. 
The foregoing, however, shall not limit the Tenant’s rights to serve
process in any other manner permitted by law or to bring any legal action or
proceeding or to obtain execution of judgment in any other jurisdiction.  The Guarantor hereby irrevocably waives any
objection which it may now or hereafter have to the laying of the venue of any
suit, 


 


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action or
proceeding arising out of or relating to this Guaranty, and hereby further
irrevocably waives any claim of forum nonconveniens.


 


13.           Landlord’s
Discharge. 
If for any reason any of the Guaranteed Obligations have been discharged
or have become irrecoverable from the Landlord by operation of law or for any
other reason, the liabilities of the Guarantor under this Guaranty shall
nevertheless remain in full force and effect notwithstanding such discharge or
irrecoverability, subject to the terms and conditions hereof.


 


14.           Notices.  Except as otherwise specifically provided for
herein, any notice hereunder shall be given in writing and mailed or delivered
to each party at its address set forth below, or, as to each party, at such
other address as shall be designated by such party by a prior notice to the other
party in accordance with the terms of this provision.  Any notice to the Tenant shall be sent as
follows:


 


EnerNOC, Inc.


75 Federal Street, Suite 300


Boston, MA 02110


Attn: General Counsel


 


with a copy to:


 


EnerNOC, Inc.


75 Federal Street, Suite 300


Boston, MA 02110


Attn: Chief Financial Officer


 


Any notice to the Guarantor shall be sent as follows:


 


Aslan Realty Partners III, L.  L.  C.


150 North Wacker Drive, Suite 800


Chicago, IL 60606


Attn: Douglas W. 
Lyons


 


with a copy to:


 


Drane Freyer & Lapins Limited


150 North Wacker Drive, Suite 800


Chicago, IL 60606


Attn: Wendy Freyer, Esq.


 


All notices hereunder shall be
effective (i) upon delivery by hand and (ii) upon delivery if
delivered by overnight courier (such delivery to be evidenced by the courier’s records).


 


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15.           Gender.  The term “Guarantor” and all pronouns
refining thereto as used herein shall be construed in the masculine, feminine,
neuter or singular or plural as the context may require.


 


16.           Limitation
of Liability of Members, Managers, Officers, Etc.  Any obligation or liability whatsoever of
Guarantor, which may arise at any time under this Guaranty or any obligation or
liability which may be incurred by it pursuant to any other instrument, transaction,
or undertaking contemplated hereby shall not be personally binding upon, nor
shall resort for the enforcement thereof be had to any direct or indirect
members, managers, trustees, beneficiaries, officers, directors, shareholders,
employees, agents or other affiliates of Guarantor or any assets of such
affiliates, regardless of whether such obligation or liability is in the nature
of contract, tort, or otherwise.  Nothing
contained in this Section shall be construed to modify, limit or waive any
of the liability of the Landlord under the Lease.


 


[Signature Page Follows]


 


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IN WITNESS WHEREOF, Guarantor has executed this
Guaranty as of the day and year first written above.


 


	
   

  	
  ASLAN REALTY PARTNERS III, LLC, a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Aslan GP III, L.L.C., a Delaware limited

  liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


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